SCR CHAPTER 20
RULES OF PROFESSIONAL CONDUCT FOR ATTORNEYS
INDEX (continued)
COUNSELOR
2.1 Advisor
2.2 Omitted
2.3 Evaluation for use by
3rd persons
2.4 Lawyer
serving as 3rd-party neutral
ADVOCATE
3.1
Meritorious
claims and contentions
3.3
Candor toward
the tribunal
3.4
Fairness to
opposing party and counsel
3.5
Impartiality
and decorum of the tribunal
3.6
Trial
publicity
3.8
Special
responsibilities of a prosecutor
3.9
Advocate in
nonadjudicative proceedings
3.10
Omitted
TRANSACTIONS WITH PERSONS OTHER
THAN CLIENTS
4.1
Truthfulness
in statements to others
4.2
Communication
with person represented by counsel
4.3
Dealing
with unrepresented person
4.4
Respect for
rights of 3rd persons
LAW FIRMS AND ASSOCIATIONS
5.1
Responsibilities of partners, managers, and
supervisory lawyers
5.2
Responsibilities of a subordinate lawyer
5.3
Responsibilities regarding nonlawyer
assistants
5.4
Professional
independence of a lawyer
5.5
Unauthorized
practice of law
5.6
Restrictions
on right to practice
5.7
Limited
liability legal practice
PUBLIC SERVICE
6.1
Voluntary pro
bono publico service
6.3
Membership
in legal services organizations
6.4
Law reform
activities affecting client interests
6.5
Nonprofit
and court-annexed limited legal services programs
INFORMATION ABOUT LEGAL SERVICES
7.1
Communications
concerning a lawyer's services
7.2
Advertising
7.3
Direct contact
with prospective clients
7.4
Communication
of fields of practice
7.5
Firm names
and letterheads
7.6
Political
contributions to obtain government legal engagements or appointments by judges
MAINTAINING THE INTEGRITY OF THE
PROFESSION
8.1
Bar
admission and disciplinary matters
8.2
Judicial and
legal officials
8.3
Reporting
professional misconduct
8.4
Misconduct
8.5
Disciplinary
authority; choice of law
COUNSELOR
In representing a client, a lawyer shall exercise
independent professional judgment and render candid advice. In rendering
advice, a lawyer may refer not only to law but to other considerations such as
moral, economic, social, and political factors that may be relevant to the
client's situation.
Scope of Advice
[1] A client is entitled to
straightforward advice expressing the lawyer's honest assessment. Legal advice
often involves unpleasant facts and alternatives that a client may be
disinclined to confront. In presenting advice, a lawyer endeavors to sustain
the client's morale and may put advice in as acceptable a form as honesty
permits. However, a lawyer should not be deterred from giving candid advice by
the prospect that the advice will be unpalatable to the client.
Advice couched in narrow legal
terms may be of little value to a client, especially where practical
considerations, such as cost or effects on other people, are predominant.
Purely technical legal advice, therefore, can sometimes be inadequate. It is
proper for a lawyer to refer to relevant moral and ethical considerations in
giving advice. Although a lawyer is not a moral advisor as such, moral and
ethical considerations impinge upon most legal questions and may decisively
influence how the law will be applied.
[2] A client may expressly or
impliedly ask the lawyer for purely technical advice. When such a request is
made by a client experienced in legal matters, the lawyer may accept it at face
value. When such a request is made by a client inexperienced in legal matters,
however, the lawyer's responsibility as advisor may include indicating that
more may be involved than strictly legal considerations.
[3] Matters that go beyond
strictly legal questions may also be in the domain of another profession.
Family matters can involve problems within the professional competence of
psychiatry, clinical psychology or social work; business matters can involve
problems within the competence of the accounting profession or of financial
specialists. Where consultation with a professional in another field is itself
something a competent lawyer would recommend, the lawyer should make such a
recommendation. At the same time, a lawyer's advice at its best often consists
of recommending a course of action in the face of conflicting recommendations
of experts.
Offering Advice
[4] In general, a lawyer is not
expected to give advice until asked by the client. However, when a lawyer knows
that a client proposes a course of action that is likely to result in
substantial adverse legal consequences to the client, the lawyer's duty to the
client under Rule 1.4 may require that the lawyer offer advice if the client's
course of action is related to the representation. Similarly, when a matter is likely
to involve litigation, it may be necessary under Rule 1.4 to inform the client
of forms of dispute resolution that might constitute reasonable alternatives to
litigation. A lawyer ordinarily has no duty to initiate investigation of a
client's affairs or to give advice that the client has indicated is unwanted,
but a lawyer may initiate advice to a client when doing so appears to be in the
client's interest.
SCR
20:2.2 Omitted.
SCR 20:2.3
Evaluation for use by 3rd persons
(a) A lawyer may provide an
evaluation of a matter affecting a client for the use of someone other than the
client if the lawyer reasonably believes that making the evaluation is
compatible with other aspects of the lawyer's relationship with the client.
(b) When the lawyer knows or
reasonably should know that the evaluation is likely to affect the client's
interests materially and adversely, the lawyer shall not provide the evaluation
unless the client gives informed consent.
(c) Except as disclosure is authorized
in connection with a report of an evaluation, information relating to the
evaluation is otherwise protected by SCR 20:1.6.
Definition
[1] An evaluation may be
performed at the client's direction or when impliedly authorized in order to
carry out the representation. See Rule 1.2. Such an evaluation may be for the
primary purpose of establishing information for the benefit of third parties;
for example, an opinion concerning the title of property rendered at the behest
of a vendor for the information of a prospective purchaser, or at the behest of
a borrower for the information of a prospective lender. In some situations, the
evaluation may be required by a government agency; for example, an opinion concerning
the legality of the securities registered for sale under the securities laws.
In other instances, the evaluation may be required by a third person, such as a
purchaser of a business.
[2] A legal evaluation should be
distinguished from an investigation of a person with whom the lawyer does not
have a client-lawyer relationship. For example, a lawyer retained by a
purchaser to analyze a vendor's title to property does not have a client-lawyer
relationship with the vendor. So also, an investigation into a person's affairs
by a government lawyer, or by special counsel by a government lawyer, or by
special counsel employed by the government, is not an evaluation as that term
is used in this Rule. The question is whether the lawyer is retained by the person
whose affairs are being examined. When the lawyer is retained by that person,
the general rules concerning loyalty to client and preservation of confidences
apply, which is not the case if the lawyer is retained by someone else. For
this reason, it is essential to identify the person by whom the lawyer is
retained. This should be made clear not only to the person under examination,
but also to others to whom the results are to be made available.
Duties Owed to Third Person and Client
[3] When the evaluation is
intended for the information or use of a third person, a legal duty to that
person may or may not arise. That legal question is beyond the scope of this
Rule. However, since such an evaluation involves a departure from the normal
client-lawyer relationship, careful analysis of the situation is required. The
lawyer must be satisfied as a matter of professional judgment that making the
evaluation is compatible with other functions undertaken in behalf of the
client. For example, if the lawyer is acting as advocate in defending the
client against charges of fraud, it would normally be incompatible with that
responsibility for the lawyer to perform an evaluation for others concerning
the same or a related transaction. Assuming no such impediment is apparent,
however, the lawyer should advise the client of the implications of the
evaluation, particularly the lawyer's responsibilities to third persons and the
duty to disseminate the findings.
Access to and Disclosure of Information
[4] The quality of
an evaluation depends on the freedom and extent of the investigation upon which
it is based. Ordinarily a lawyer should have whatever latitude of investigation
seems necessary as a matter of professional judgment. Under some circumstances,
however, the terms of the evaluation may be limited. For example, certain
issues or sources may be categorically excluded, or the scope of search may be
limited by time constraints or the noncooperation of persons having relevant
information. Any such limitations that are material to the evaluation should be
described in the report. If after a lawyer has commenced an evaluation, the
client refuses to comply with the terms upon which it was understood the
evaluation was to have been made, the lawyer's obligations are determined by
law, having reference to the terms of the client's agreement and the
surrounding circumstances. In no circumstances is the lawyer permitted to
knowingly make a false statement of material fact or law in providing an
evaluation under this Rule. See Rule 4.1.
Obtaining Client's Informed Consent
[5] Information
relating to an evaluation is protected by Rule 1.6. In many situations,
providing an evaluation to a third party poses no significant risk to the
client; thus, the lawyer may be impliedly authorized to disclose information to
carry out the representation. See Rule 1.6(a). Where, however, it is reasonably
likely that providing the evaluation will affect the client's interests
materially and adversely, the lawyer must first obtain the client's consent after
the client has been adequately informed concerning the important possible
effects on the client's interests. See Rules 1.6(a) and 1.0(e).
Financial Auditors' Requests for Information
[6]
When a question concerning the legal situation of a client arises at the
instance of the client's financial auditor and the question is referred to the
lawyer, the lawyer's response may be made in accordance with procedures
recognized in the legal profession. Such a procedure is set forth in the
American Bar Association Statement of Policy Regarding Lawyers' Responses to
Auditors' Requests for Information, adopted in 1975.
SCR 20:2.4 Lawyer
serving as 3rd-party neutral
(a) A lawyer serves as a
3rd-party neutral when the lawyer assists two or more persons who are not
clients of the lawyer to reach a resolution of a dispute or other matter that
has arisen between them. Service as a 3rd-party neutral may include service as
an arbitrator, a mediator or in such other capacity as will enable the lawyer
to assist the parties to resolve the matter.
(b) A lawyer serving as a
3rd-party neutral shall inform unrepresented parties that the lawyer is not
representing them. When the lawyer knows or reasonably should know that a party
does not understand the lawyer's role in the matter, the lawyer shall explain
the difference between the lawyer's role as a 3rd-party neutral and a lawyer's
role as one who represents a client.
[1] Alternative
dispute resolution has become a substantial part of the civil justice system.
Aside from representing clients in dispute-resolution processes, lawyers often
serve as third-party neutrals. A third-party neutral is a person, such as a mediator,
arbitrator, conciliator or evaluator, who assists the parties, represented or
unrepresented, in the resolution of a dispute or in the arrangement of a
transaction. Whether a third-party neutral serves primarily as a facilitator,
evaluator or decision maker depends on the particular process that is either
selected by the parties or mandated by a court.
[2] The role of a
third-party neutral is not unique to lawyers, although, in some court-connected
contexts, only lawyers are allowed to serve in this role or to handle certain
types of cases. In performing this role, the lawyer may be subject to court
rules or other law that apply either to third-party neutrals generally or to
lawyers serving as third-party neutrals. Lawyer-neutrals may also be subject to
various codes of ethics, such as the Code of Ethics for Arbitration in
Commercial Disputes prepared by a joint committee of the American Bar
Association and the American Arbitration Association or the Model Standards of
Conduct for Mediators jointly prepared by the American Bar Association, the
American Arbitration Association and the Society of Professionals in Dispute
Resolution.
[3] Unlike
nonlawyers who serve as third-party neutrals, lawyers serving in this role may
experience unique problems as a result of differences between the role of a
third-party neutral and a lawyer's service as a client representative. The
potential for confusion is significant when the parties are unrepresented in
the process. Thus, paragraph (b) requires a lawyer-neutral to inform
unrepresented parties that the lawyer is not representing them. For some
parties, particularly parties who frequently use dispute-resolution processes,
this information will be sufficient. For others, particularly those who are
using the process for the first time, more information will be required. Where
appropriate, the lawyer should inform unrepresented parties of the important
differences between the lawyer's role as third-party neutral and a lawyer's
role as a client representative, including the inapplicability of the
attorney-client evidentiary privilege. The extent of disclosure required under
this paragraph will depend on the particular parties involved and the subject
matter of the proceeding, as well as the particular features of the dispute-resolution
process selected.
[4] A lawyer who
serves as a third-party neutral subsequently may be asked to serve as a lawyer
representing a client in the same matter. The conflicts of interest that arise
for both the individual lawyer and the lawyer's law firm are addressed in Rule
1.12.
[5]
Lawyers who represent clients in alternative dispute-resolution processes are
governed by the Rules of Professional Conduct. When the dispute-resolution
process takes place before a tribunal, as in binding arbitration (see Rule
1.0(m)), the lawyer's duty of candor is governed by Rule 3.3. Otherwise, the
lawyer's duty of candor toward both the third-party neutral and other parties
is governed by Rule 4.1.
ADVOCATE
SCR 20:3.1
Meritorious claims and contentions
(a) In representing a client, a
lawyer shall not:
(1) knowingly advance a claim or
defense that is unwarranted under existing law, except that the lawyer may
advance such claim or defense if it can be supported by good faith argument for
an extension, modification or reversal of existing law;
(2) knowingly advance a factual
position unless there is a basis for doing so that is not frivolous; or
(3) file a suit, assert a
position, conduct a defense, delay a trial or take other action on behalf of
the client when the lawyer knows or when it is obvious that such an action
would serve merely to harass or maliciously injure another.
(b) A lawyer for the defendant in
a criminal proceeding, or the respondent in a proceeding that could result in
deprivation of liberty, may nevertheless so defend the proceeding as to require
that every element of the case be established.
This
Wisconsin Supreme Court Rule differs from the Model Rule in expressly
establishing a subjective test for an ethical violation.
[1] The advocate has
a duty to use legal procedure for the fullest benefit of the client's cause,
but also a duty not to abuse legal procedure. The law, both procedural and
substantive, establishes the limits within which an advocate may proceed.
However, the law is not always clear and never is static. Accordingly, in
determining the proper scope of advocacy, account must be taken of the law's
ambiguities and potential for change.
[2] The filing of an
action or defense or similar action taken for a client is not frivolous merely
because the facts have not first been fully substantiated or because the lawyer
expects to develop vital evidence only by discovery. What is required of
lawyers, however, is that they inform themselves about the facts of their
clients' cases and the applicable law and determine that they can make good
faith arguments in support of their clients' positions. Such action is not
frivolous even though the lawyer believes that the client's position ultimately
will not prevail. The action is frivolous, however, if the lawyer is unable
either to make a good faith argument on the merits of the action taken or to
support the action taken by a good faith argument for an extension,
modification or reversal of existing law.
[3]
The lawyer's obligations under this Rule are subordinate to federal or state
constitutional law that entitles a defendant in a criminal matter to the
assistance of counsel in presenting a claim or contention that otherwise would
be prohibited by this Rule.
SCR 20:3.2
Expediting litigation
A lawyer shall make reasonable efforts
to expedite litigation consistent with the interests of the client.
[1]
Dilatory practices bring the administration of justice into disrepute. Although
there will be occasions when a lawyer may properly seek a postponement for personal
reasons, it is not proper for a lawyer to routinely fail to expedite litigation
solely for the convenience of the advocates. Nor will a failure to expedite be
reasonable if done for the purpose of frustrating an opposing party's attempt
to obtain rightful redress or repose. It is not a justification that similar
conduct is often tolerated by the bench and bar. The question is whether a
competent lawyer acting in good faith would regard the course of action as
having some substantial purpose other than delay. Realizing financial or other
benefit from otherwise improper delay in litigation is not a legitimate
interest of the client.
SCR 20:3.3 Candor
toward the tribunal
(a) A lawyer shall not knowingly:
(1) make a false statement of
fact or law to a tribunal or fail to correct a false statement of material fact
or law previously made to the tribunal by the lawyer;
(2) fail to disclose to the
tribunal legal authority in the controlling jurisdiction known to the lawyer to
be directly adverse to the position of the client and not disclosed by opposing
counsel; or
(3) offer evidence that the
lawyer knows to be false. If a lawyer, the lawyer's client, or a witness called
by the lawyer, has offered material evidence and the lawyer comes to know of
its falsity, the lawyer shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence,
other than the testimony of a defendant in a criminal matter that the lawyer
reasonably believes is false.
(b) A lawyer who represents a
client in an adjudicative proceeding and who knows that a person intends to
engage, is engaging, or has engaged in criminal or fraudulent conduct related
to the proceeding shall take reasonable remedial measures, including, if
necessary, disclosure to the tribunal.
(c) The duties stated in pars.
(a) and (b) apply even if compliance requires disclosure of information
otherwise protected by SCR 20:1.6.
(d) In an ex parte proceeding, a
lawyer shall inform the tribunal of all material facts known to the lawyer that
will enable the tribunal to make an informed decision, whether or not the facts
are adverse.
Unlike its Model Rule
counterpart, paragraph (c) does not specify when the duties expire. For this
reason, ABA Comment [13] is inapplicable.
[1] This Rule governs the conduct of a lawyer who is
representing a client in the proceedings of a tribunal. See Rule 1.0(m) for the
definition of "tribunal." It also applies when the lawyer is
representing a client in an ancillary proceeding conducted pursuant to the
tribunal's adjudicative authority, such as a deposition. Thus, for example,
paragraph (a)(3) requires a lawyer to take reasonable remedial measures if the
lawyer comes to know that a client who is testifying in a deposition has
offered evidence that is false.
[2] This Rule sets
forth the special duties of lawyers as officers of the court to avoid conduct
that undermines the integrity of the adjudicative process. A lawyer acting as
an advocate in an adjudicative proceeding has an obligation to present the
client's case with persuasive force. Performance of that duty while maintaining
confidences of the client, however, is qualified by the advocate's duty of
candor to the tribunal. Consequently, although a lawyer in an adversary
proceeding is not required to present an impartial exposition of the law or to
vouch for the evidence submitted in a cause, the lawyer must not allow the
tribunal to be misled by false statements of law or fact or evidence that the
lawyer knows to be false.
Representations by a Lawyer
[3] An advocate is
responsible for pleadings and other documents prepared for litigation, but is
usually not required to have personal knowledge of matters asserted therein,
for litigation documents ordinarily present assertions by the client, or by
someone on the client's behalf, and not assertions by the lawyer. Compare Rule
3.1. However, an assertion purporting to be on the lawyer's own knowledge, as
in an affidavit by the lawyer or in a statement in open court, may properly be
made only when the lawyer knows the assertion is true or believes it to be true
on the basis of a reasonably diligent inquiry. There are circumstances where
failure to make a disclosure is the equivalent of an affirmative
misrepresentation. The obligation prescribed in Rule 1.2(d) not to counsel a
client to commit or assist the client in committing a fraud applies in
litigation. Regarding compliance with Rule 1.2(d), see the Comment to that
Rule. See also the Comment to Rule 8.4(b).
Legal Argument
[4] Legal argument
based on a knowingly false representation of law constitutes dishonesty toward
the tribunal. A lawyer is not required to make a disinterested exposition of
the law, but must recognize the existence of pertinent legal authorities.
Furthermore, as stated in paragraph (a)(2), an advocate has a duty to disclose
directly adverse authority in the controlling jurisdiction that has not been
disclosed by the opposing party. The underlying concept is that legal argument
is a discussion seeking to determine the legal premises properly applicable to
the case.
Offering Evidence
[5] Paragraph (a)(3)
requires that the lawyer refuse to offer evidence that the lawyer knows to be
false, regardless of the client's wishes. This duty is premised on the lawyer's
obligation as an officer of the court to prevent the trier of fact from being
misled by false evidence. A lawyer does not violate this Rule if the lawyer
offers the evidence for the purpose of establishing its falsity.
[6] If a lawyer
knows that the client intends to testify falsely or wants the lawyer to
introduce false evidence, the lawyer should seek to persuade the client that
the evidence should not be offered. If the persuasion is ineffective and the
lawyer continues to represent the client, the lawyer must refuse to offer the
false evidence. If only a portion of a witness's testimony will be false, the
lawyer may call the witness to testify but may not elicit or otherwise permit
the witness to present the testimony that the lawyer knows is false.
[7] The duties
stated in paragraphs (a) and (b) apply to all lawyers, including defense counsel
in criminal cases. In some jurisdictions, however, courts have required counsel
to present the accused as a witness or to give a narrative statement if the
accused so desires, even if counsel knows that the testimony or statement will
be false. The obligation of the advocate under the Rules of Professional
Conduct is subordinate to such requirements. See also Comment [9].
[8] The prohibition
against offering false evidence only applies if the lawyer knows that the
evidence is false. A lawyer's reasonable belief that evidence is false does not
preclude its presentation to the trier of fact. A lawyer's knowledge that
evidence is false, however, can be inferred from the circumstances. See Rule
1.0(f). Thus, although a lawyer should resolve doubts about the veracity of
testimony or other evidence in favor of the client, the lawyer cannot ignore an
obvious falsehood.
[9] Although
paragraph (a)(3) only prohibits a lawyer from offering evidence the lawyer
knows to be false, it permits the lawyer to refuse to offer testimony or other
proof that the lawyer reasonably believes is false. Offering such proof may
reflect adversely on the lawyer's ability to discriminate in the quality of
evidence and thus impair the lawyer's effectiveness as an advocate. Because of
the special protections historically provided criminal defendants, however,
this Rule does not permit a lawyer to refuse to offer the testimony of such a
client where the lawyer reasonably believes but does not know that the
testimony will be false. Unless the lawyer knows the testimony will be false,
the lawyer must honor the client's decision to testify. See also Comment [7].
Remedial Measures
[10] Having offered
material evidence in the belief that it was true, a lawyer may subsequently
come to know that the evidence is false. Or, a lawyer may be surprised when the
lawyer's client, or another witness called by the lawyer, offers testimony the
lawyer knows to be false, either during the lawyer's direct examination or in
response to cross-examination by the opposing lawyer. In such situations or if
the lawyer knows of the falsity of testimony elicited from the client during a
deposition, the lawyer must take reasonable remedial measures. In such
situations, the advocate's proper course is to remonstrate with the client
confidentially, advise the client of the lawyer's duty of candor to the
tribunal and seek the client's cooperation with respect to the withdrawal or
correction of the false statements or evidence. If that fails, the advocate
must take further remedial action. If withdrawal from the representation is not
permitted or will not undo the effect of the false evidence, the advocate must
make such disclosure to the tribunal as is reasonably necessary to remedy the
situation, even if doing so requires the lawyer to reveal information that
otherwise would be protected by Rule 1.6. It is for the tribunal then to
determine what should be done—making a statement about the matter to the trier
of fact, ordering a mistrial or perhaps nothing.
[11] The disclosure
of a client's false testimony can result in grave consequences to the client,
including not only a sense of betrayal but also loss of the case and perhaps a
prosecution for perjury. But the alternative is that the lawyer cooperate in
deceiving the court, thereby subverting the truth-finding process which the
adversary system is designed to implement. See Rule 1.2(d). Furthermore, unless
it is clearly understood that the lawyer will act upon the duty to disclose the
existence of false evidence, the client can simply reject the lawyer's advice
to reveal the false evidence and insist that the lawyer keep silent. Thus the
client could in effect coerce the lawyer into being a party to fraud on the
court.
Preserving Integrity of Adjudicative Process
[12] Lawyers have a
special obligation to protect a tribunal against criminal or fraudulent conduct
that undermines the integrity of the adjudicative process, such as bribing,
intimidating or otherwise unlawfully communicating with a witness, juror, court
official or other participant in the proceeding, unlawfully destroying or
concealing documents or other evidence or failing to disclose information to
the tribunal when required by law to do so. Thus, paragraph (b) requires a
lawyer to take reasonable remedial measures, including disclosure if necessary,
whenever the lawyer knows that a person, including the lawyer's client, intends
to engage, is engaging or has engaged in criminal or fraudulent conduct related
to the proceeding.
Duration
of Obligation
[13] A practical time limit on the obligation to rectify
false evidence or false statements of law and fact has to be established. The
conclusion of the proceeding is a reasonably definite point for the termination
of the obligation. A proceeding has concluded within the meaning of this Rule
when a final judgment in the proceeding has been affirmed on appeal or the time
for review has passed.
Ex Parte Proceedings
[14] Ordinarily, an
advocate has the limited responsibility of presenting one side of the matters
that a tribunal should consider in reaching a decision; the conflicting
position is expected to be presented by the opposing party. However, in any ex
parte proceeding, such as an application for a temporary restraining order,
there is no balance of presentation by opposing advocates. The object of an ex
parte proceeding is nevertheless to yield a substantially just result. The
judge has an affirmative responsibility to accord the absent party just
consideration. The lawyer for the represented party has the correlative duty to
make disclosures of material facts known to the lawyer and that the lawyer
reasonably believes are necessary to an informed decision.
Withdrawal
[15]
Normally, a lawyer's compliance with the duty of candor imposed by this Rule
does not require that the lawyer withdraw from the representation of a client
whose interests will be or have been adversely affected by the lawyer's
disclosure. The lawyer may, however, be required by Rule 1.16(a) to seek
permission of the tribunal to withdraw if the lawyer's compliance with this
Rule's duty of candor results in such an extreme deterioration of the
client-lawyer relationship that the lawyer can no longer competently represent
the client. Also see Rule 1.16(b) for the circumstances in which a lawyer will
be permitted to seek a tribunal's permission to withdraw. In connection with a
request for permission to withdraw that is premised on a client's misconduct, a
lawyer may reveal information relating to the representation only to the extent
reasonably necessary to comply with this Rule or as otherwise permitted by Rule
1.6.
SCR 20:3.4
Fairness to opposing party and counsel
A lawyer shall not:
(a) unlawfully obstruct another
party's access to evidence or unlawfully alter, destroy or conceal a document
or other material having potential evidentiary value. A lawyer shall not
counsel or assist another person to do any such act;
(b) falsify evidence, counsel or
assist a witness to testify falsely, or offer an inducement to a witness that
is prohibited by law;
(c) knowingly disobey an
obligation under the rules of a tribunal, except for an open refusal based on
an assertion that no valid obligation exists;
(d) in pretrial procedure, make a
frivolous discovery request or fail to make reasonably diligent effort to
comply with a legally proper discovery request by an opposing party;
(e) in trial, allude to any
matter that the lawyer does not reasonably believe is relevant or that will not
be supported by admissible evidence, assert personal knowledge of facts in
issue except when testifying as a witness, or state a personal opinion as to
the justness of a cause, the credibility of a witness, the culpability of a
civil litigant or the guilt or innocence of an accused; or
(f) request a person other than a
client to refrain from voluntarily giving relevant information to another party
unless:
(1) the person is a relative or
an employee or other agent of a client; and
(2) the lawyer reasonably
believes that the person's interests will not be adversely affected by
refraining from giving such information.
[1] The procedure of the
adversary system contemplates that the evidence in a case is to be marshalled
competitively by the contending parties. Fair competition in the adversary
system is secured by prohibitions against destruction or concealment of
evidence, improperly influencing witnesses, obstructive tactics in discovery
procedure, and the like.
[2] Documents and other items of
evidence are often essential to establish a claim or defense. Subject to
evidentiary privileges, the right of an opposing party, including the
government, to obtain evidence through discovery or subpoena is an important
procedural right. The exercise of that right can be frustrated if relevant
material is altered, concealed or destroyed. Applicable law in many
jurisdictions makes it an offense to destroy material for purpose of impairing
its availability in a pending proceeding or one whose commencement can be
foreseen. Falsifying evidence is also generally a criminal offense. Paragraph
(a) applies to evidentiary material generally, including computerized
information. Applicable law may permit a lawyer to take temporary possession of
physical evidence of client crimes for the purpose of conducting a limited
examination that will not alter or destroy material characteristics of the
evidence. In such a case, applicable law may require the lawyer to turn the
evidence over to the police or other prosecuting authority, depending on the
circumstances.
[3] With regard to paragraph
(b), it is not improper to pay a witness's expenses or to compensate an expert
witness on terms permitted by law. The common-law rule in most jurisdictions is
that it is improper to pay an occurrence witness any fee for testifying and
that it is improper to pay an expert witness a contingent fee.
[4] Paragraph (f) permits a
lawyer to advise employees of a client to refrain from giving information to
another party, for the employees may identify their interests with those of the
client. See also Rule 4.2.
SCR 20:3.5
Impartiality and decorum of the tribunal
A lawyer shall not:
(a) seek to influence a judge,
juror, prospective juror or other official by means prohibited by law;
(b) communicate ex parte with
such a person during the proceeding unless authorized to do so by law or court
order or for scheduling purposes if permitted by the court. If communication between a lawyer and judge
has occurred in order to schedule the matter, the lawyer involved shall
promptly notify the lawyer for the other party or the other party, if
unrepresented, of such communication;
(c) communicate with a juror or
prospective juror after discharge of the jury if:
(1) the communication is
prohibited by law or court order;
(2) the juror has made known to
the lawyer a desire not to communicate; or
(3) the communication involves
misrepresentation, coercion, duress or harassment; or
(d) engage in conduct intended to
disrupt a tribunal.
Paragraph
(b) differs from the Model Rule in that it expressly imposes a duty promptly to
notify other parties in the event of an ex parte communication with a judge
concerning scheduling.
[1]
Many forms of improper influence upon a tribunal are proscribed by criminal
law. Others are specified in the ABA Model Code of Judicial Conduct, with which
an advocate should be familiar. A lawyer is required to avoid contributing to a
violation of such provisions.
During a proceeding a lawyer may not
communicate ex parte with persons serving in an official capacity in the
proceeding, such as judges, masters or jurors, unless authorized to do so by
law or court order.
[2] A lawyer may on
occasion want to communicate with a juror or prospective juror after the jury
has been discharged. The lawyer may do so unless the communication is
prohibited by law or a court order but must respect the desire of the juror not
to talk with the lawyer. The lawyer may not engage in improper conduct during
the communication.
[3]
The advocate's function is to present evidence and argument so that the cause
may be decided according to law. Refraining from abusive or obstreperous
conduct is a corollary of the advocate's right to speak on behalf of litigants.
A lawyer may stand firm against abuse by a judge but should avoid
reciprocation; the judge's default is no justification for similar dereliction
by an advocate. An advocate can present the cause, protect the record for subsequent
review and preserve professional integrity by patient firmness no less
effectively than by belligerence or theatrics.
The duty to refrain from
disruptive conduct applies to any proceeding of a tribunal, including a
deposition. See Rule 1.0(m).
(a) A lawyer who is participating
or has participated in the investigation or litigation of a matter shall not
make an extrajudicial statement that the lawyer knows or reasonably should know
will be disseminated by means of public communication and will have a
substantial likelihood of materially prejudicing an adjudicative proceeding in
the matter.
(b) A statement referred to in
par. (a) ordinarily is likely to have such an effect when it refers to a civil
matter triable to a jury, a criminal matter, or any other proceeding that could
result in deprivation of liberty, and the statement relates to:
(1) the character, credibility,
reputation or criminal record of a party, suspect in a criminal investigation
or witness, or the identity of a witness, or the expected testimony of a party
or witness;
(2) in a criminal case or
proceeding that could result in deprivation of liberty, the possibility of a
plea of guilty to the offense or the existence or contents of any confession,
admission, or statement given by a defendant or suspect or that person's
refusal or failure to make a statement;
(3) the performance or results of
any examination or test or the refusal or failure of a person to submit to an
examination or test, or the identity or nature of physical evidence expected to
be presented;
(4) any opinion as to the guilt
or innocence of a defendant or suspect in a criminal case or proceeding that
could result in deprivation of liberty;
(5) information the lawyer knows
or reasonably should know is likely to be inadmissible as evidence in a trial
and would if disclosed create a substantial risk of prejudicing an impartial
trial; or
(6) the fact that a defendant has
been charged with a crime, unless there is included therein a statement
explaining that the charge is merely an accusation and that the defendant is
presumed innocent until and unless proven guilty.
(c) Notwithstanding pars. (a) and
(b)(1) through (5), a lawyer may state:
(1) the claim, offense or defense
involved and, except when prohibited by law, the identity of the persons
involved;
(2) information contained in a
public record;
(3) that an investigation of a
matter is in progress;
(4) the scheduling or result of
any step in litigation;
(5) a request for assistance in
obtaining evidence and information necessary thereto;
(6) a warning of danger
concerning the behavior of a person involved, when there is reason to believe
that there exists the likelihood of substantial harm to an individual or to the
public interest; and
(7) in a criminal case, in
addition to subs. (1) through (6):
(i) the identity,
residence, occupation and family status of the accused;
(ii) if the accused has
not been apprehended, information necessary to aid in apprehension of that
person;
(iii) the fact, time and
place of arrest; and
(iv) the identity of
investigating and arresting officers or agencies and the length of the
investigation.
(d) Notwithstanding par. (a), a
lawyer may make a statement that a reasonable lawyer would believe is required
to protect a client from the substantial likelihood of undue prejudicial effect
of recent publicity not initiated by the lawyer or the lawyer's client. A
statement made pursuant to this paragraph shall be limited to such information
as is necessary to mitigate the recent adverse publicity.
(e) No lawyer associated in a
firm or government agency with a lawyer subject to par. (a) shall make a
statement prohibited by par. (a).
Paragraph
(b) contains provisions found in ABA Comment [5] but not contained in the Model
Rule. Because of the addition of paragraph (b), this rule and the Model Rule
have differing numbering, so that care should be used in consulting the ABA
Comment.
[1] It is difficult to strike a
balance between protecting the right to a fair trial and safeguarding the right
of free expression. Preserving the right to a fair trial necessarily entails some
curtailment of the information that may be disseminated about a party prior to
trial, particularly where trial by jury is involved. If there were no such
limits, the result would be the practical nullification of the protective
effect of the rules of forensic decorum and the exclusionary rules of evidence.
On the other hand, there are vital social interests served by the free
dissemination of information about events having legal consequences and about
legal proceedings themselves. The public has a right to know about threats to
its safety and measures aimed at assuring its security. It also has a
legitimate interest in the conduct of judicial proceedings, particularly in
matters of general public concern. Furthermore, the subject matter of legal
proceedings is often of direct significance in debate and deliberation over
questions of public policy.
[2] Special rules of
confidentiality may validly govern proceedings in juvenile, domestic relations
and mental disability proceedings, and perhaps other types of litigation. Rule
3.4(c) requires compliance with such rules.
[3] The Rule sets forth a basic
general prohibition against a lawyer's making statements that the lawyer knows
or should know will have a substantial likelihood of materially prejudicing an
adjudicative proceeding. Recognizing that the public value of informed
commentary is great and the likelihood of prejudice to a proceeding by the
commentary of a lawyer who is not involved in the proceeding is small, the Rule
applies only to lawyers who are, or who have been involved in the investigation
or litigation of a case, and their associates.
[4] Paragraph (b) identifies
specific matters about which a lawyer's statements would not ordinarily be
considered to present a substantial likelihood of material prejudice, and
should not in any event be considered prohibited by the general prohibition of
paragraph (a). Paragraph (b) is not intended to be an exhaustive listing of the
subjects upon which a lawyer may make a statement, but statements on other matters
may be subject to paragraph (a).
[5] There are, on the other
hand, certain subjects that are more likely than not to have a material
prejudicial effect on a proceeding, particularly when they refer to a civil
matter triable to a jury, a criminal matter, or any other proceeding that could
result in incarceration. These subjects relate to:
(1) the character,
credibility, reputation or criminal record of a party, suspect in a criminal
investigation or witness, or the identity of a witness, or the expected
testimony of a party or witness;
(2) in a criminal case or
proceeding that could result in incarceration, the possibility of a plea of
guilty to the offense or the existence or contents of any confession,
admission, or statement given by a defendant or suspect or that person's
refusal or failure to make a statement;
(3) the performance or
results of any examination or test or the refusal or failure of a person to
submit to an examination or test, or the identity or nature of physical
evidence expected to be presented;
(4) any opinion as to the
guilt or innocence of a defendant or suspect in a criminal case or proceeding
that could result in incarceration;
(5) information that the
lawyer knows or reasonably should know is likely to be inadmissible as evidence
in a trial and that would, if disclosed, create a substantial risk of
prejudicing an impartial trial; or
(6) the fact that a
defendant has been charged with a crime, unless there is included therein a
statement explaining that the charge is merely an accusation and that the
defendant is presumed innocent until and unless proven guilty.
[6] Another relevant factor in
determining prejudice is the nature of the proceeding involved. Criminal jury
trials will be most sensitive to extrajudicial speech. Civil trials may be less
sensitive. Non-jury hearings and arbitration proceedings may be even less
affected. The Rule will still place limitations on prejudicial comments in
these cases, but the likelihood of prejudice may be different depending on the
type of proceeding.
[7] Finally, extrajudicial
statements that might otherwise raise a question under this Rule may be
permissible when they are made in response to statements made publicly by
another party, another party's lawyer, or third persons, where a reasonable
lawyer would believe a public response is required in order to avoid prejudice
to the lawyer's client. When prejudicial statements have been publicly made by
others, responsive statements may have the salutary effect of lessening any
resulting adverse impact on the adjudicative proceeding. Such responsive
statements should be limited to contain only such information as is necessary
to mitigate undue prejudice created by the statements made by others.
[8] See Rule 3.8(f) for
additional duties of prosecutors in connection with extrajudicial statements
about criminal proceedings.
(a) A lawyer shall not act as
advocate at a trial in which the lawyer is likely to be a necessary witness
unless:
(1) the testimony relates to an
uncontested issue;
(2) the testimony relates to the
nature and value of legal services rendered in the case; or
(3) disqualification of the
lawyer would work substantial hardship on the client.
(b) A lawyer may act as advocate
in a trial in which another lawyer in the lawyer's firm is likely to be called
as a witness unless precluded from doing so by SCR 20:1.7 or SCR 20:1.9.
[1] Combining the roles of
advocate and witness can prejudice the tribunal and the opposing party and can
also involve a conflict of interest between the lawyer and client.
Advocate-Witness Rule
[2] The tribunal has proper
objection when the trier of fact may be confused or misled by a lawyer serving
as both advocate and witness. The opposing party has proper objection where the
combination of roles may prejudice that party's rights in the litigation. A
witness is required to testify on the basis of personal knowledge, while an
advocate is expected to explain and comment on evidence given by others. It may
not be clear whether a statement by an advocate-witness should be taken as
proof or as an analysis of the proof.
[3] To protect the tribunal,
paragraph (a) prohibits a lawyer from simultaneously serving as advocate and
necessary witness except in those circumstances specified in paragraphs (a)(1)
through (a)(3). Paragraph (a)(1) recognizes that if the testimony will be
uncontested, the ambiguities in the dual role are purely theoretical. Paragraph
(a)(2) recognizes that where the testimony concerns the extent and value of
legal services rendered in the action in which the testimony is offered,
permitting the lawyers to testify avoids the need for a second trial with new
counsel to resolve that issue. Moreover, in such a situation the judge has
firsthand knowledge of the matter in issue; hence, there is less dependence on
the adversary process to test the credibility of the testimony.
[4] Apart from these two
exceptions, paragraph (a)(3) recognizes that a balancing is required between
the interests of the client and those of the tribunal and the opposing party.
Whether the tribunal is likely to be misled or the opposing party is likely to
suffer prejudice depends on the nature of the case, the importance and probable
tenor of the lawyer's testimony, and the probability that the lawyer's
testimony will conflict with that of other witnesses. Even if there is risk of
such prejudice, in determining whether the lawyer should be disqualified, due
regard must be given to the effect of disqualification on the lawyer's client.
It is relevant that one or both parties could reasonably foresee that the
lawyer would probably be a witness. The conflict of interest principles stated
in Rules 1.7, 1.9, and 1.10 have no application to this aspect of the problem.
[5] Because the tribunal is not
likely to be misled when a lawyer acts as advocate in a trial in which another
lawyer in the lawyer's firm will testify as a necessary witness, paragraph (b)
permits the lawyer to do so except in situations involving a conflict of
interest.
Conflict of Interest
[6] In determining if it is
permissible to act as advocate in a trial in which the lawyer will be a
necessary witness, the lawyer must also consider that the dual role may give
rise to a conflict of interest that will require compliance with Rules 1.7 or
1.9. For example, if there is likely to be substantial conflict between the
testimony of the client and that of the lawyer the representation involves a
conflict of interest that requires compliance with Rule 1.7. This would be true
even though the lawyer might not be prohibited by paragraph (a) from
simultaneously serving as advocate and witness because the lawyer's
disqualification would work a substantial hardship on the client. Similarly, a
lawyer who might be permitted to simultaneously serve as an advocate and a
witness by paragraph (a)(3) might be precluded from doing so by Rule 1.9. The problem
can arise whether the lawyer is called as a witness on behalf of the client or
is called by the opposing party. Determining whether or not such a conflict
exists is primarily the responsibility of the lawyer involved. If there is a
conflict of interest, the lawyer must secure the client's informed consent,
confirmed in writing. In some cases, the lawyer will be precluded from seeking
the client's consent. See Rule 1.7. See Rule 1.0(b) for the definition of
"confirmed in writing" and Rule 1.0(e) for the definition of
"informed consent."
[7] Paragraph (b) provides that
a lawyer is not disqualified from serving as an advocate because a lawyer with
whom the lawyer is associated in a firm is precluded from doing so by paragraph
(a). If, however, the testifying lawyer would also be disqualified by Rule 1.7
or Rule 1.9 from representing the client in the matter, other lawyers in the
firm will be precluded from representing the client by Rule 1.10 unless the
client gives informed consent under the conditions stated in Rule 1.7.
SCR 20:3.8
Special responsibilities of a prosecutor
(a) A prosecutor in a criminal
case or a proceeding that could result in deprivation of liberty shall not
prosecute a charge that the prosecutor knows is not supported by probable
cause.
(b) When communicating with an
unrepresented person in the context of an investigation or proceeding, a
prosecutor shall inform the person of the prosecutor's role and interest in the
matter.
(c) When communicating with an
unrepresented person who has a constitutional or statutory right to counsel,
the prosecutor shall inform the person of the right to counsel and the
procedures to obtain counsel and shall give that person a reasonable
opportunity to obtain counsel.
(d) When communicating with an
unrepresented person a prosecutor may discuss the matter, provide information
regarding settlement, and negotiate a resolution which may include a waiver of
constitutional and statutory rights, but a prosecutor, other than a municipal prosecutor,
shall not:
(1) otherwise provide legal
advice to the person, including, but not limited to whether to obtain counsel,
whether to accept or reject a settlement offer, whether to waive important
procedural rights or how the tribunal is likely to rule in the case, or
(2) assist the person in the
completion of (i) guilty plea forms (ii) forms for the waiver of a preliminary
hearing or (iii) forms for the waiver of a jury trial.
(e) A prosecutor shall not
subpoena a lawyer in a grand jury or other proceeding to present evidence about
a past or present client unless the prosecutor reasonably believes:
(1) the information sought is not
protected from disclosure by any applicable privilege;
(2) the evidence sought is
essential to the successful completion of an ongoing investigation or
prosecution; and
(3) there is no other feasible
alternative to obtain the information.
(f) A prosecutor, other than a
municipal prosecutor, in a criminal case or a proceeding that could result in
deprivation of liberty shall:
(1) make timely disclosure to the
defense of all evidence or information known to the prosecutor that tends to
negate the guilt of the accused or mitigates the offense, and, in connection
with sentencing, disclose to the defense and to the tribunal all unprivileged
mitigating information known to the prosecutor, except when the prosecutor is
relieved of this responsibility by a protective order of the tribunal; and
(2) exercise reasonable care to
prevent investigators, law enforcement personnel, employees or other persons
assisting or associated with the prosecutor in a criminal case from making an
extrajudicial statement that the prosecutor would be prohibited from making
under SCR 20:3.6.
(g) When a prosecutor knows of new,
credible, and material evidence creating a reasonable likelihood that a
convicted defendant did not commit an offense of which the defendant was
convicted, the prosecutor shall do all of the following:
(1) promptly disclose that evidence to an
appropriate court or authority; and
(2) if the conviction was obtained in the
prosecutor's jurisdiction:
(i) promptly make reasonable efforts to
disclose that evidence to the defendant unless a court authorizes delay; and
(ii) make reasonable efforts to undertake
an investigation or cause an investigation to be undertaken, to determine
whether the defendant was convicted of an offense that the defendant did not
commit.
(h) When a prosecutor knows of clear and
convincing evidence establishing that a defendant in the prosecutor's
jurisdiction was convicted of an offense that the defendant did not commit, the
prosecutor shall seek to remedy the conviction.
The Wisconsin Supreme Court Rule
differs from the Model Rule in several respects: (1) paragraph (b) adds the
reference to "in the context of an investigation or proceeding"; (2)
paragraphs (c) and (d) expand the rule by deleting a reference to
communications occurring only "after the commencement of litigation";
(3) paragraphs (d) and (f) exempt municipal prosecutors from certain
requirements of the rule. Care should be
used in consulting the ABA Comment.
This rule was not designed to
address significant changes in the law that might affect the incarceration
status of a number of prisoners, such as where a statute is declared
unconstitutional.
[1] A prosecutor has the
responsibility of a minister of justice and not simply that of an advocate.
This responsibility carries with it specific obligations to see that the
defendant is accorded procedural justice and that guilt is decided upon the
basis of sufficient evidence. Precisely how far the prosecutor is required to
go in this direction is a matter of debate and varies in different
jurisdictions. Many jurisdictions have adopted the ABA Standards of Criminal
Justice Relating to the Prosecution Function, which in turn are the product of
prolonged and careful deliberation by lawyers experienced in both criminal
prosecution and defense. Applicable law may require other measures by the
prosecutor and knowing disregard of those obligations or a systematic abuse of
prosecutorial discretion could constitute a violation of Rule 8.4.
[2] In some jurisdictions, a
defendant may waive a preliminary hearing and thereby lose a valuable
opportunity to challenge probable cause. Accordingly, prosecutors should not
seek to obtain waivers of preliminary hearings or other important pretrial
rights from unrepresented accused persons. Paragraph (c) does not apply,
however, to an accused appearing pro se with the approval of the tribunal. Nor
does it forbid the lawful questioning of an uncharged suspect who has knowingly
waived the rights to counsel and silence.
[3] The exception in paragraph
(d) recognizes that a prosecutor may seek an appropriate protective order from
the tribunal if disclosure of information to the defense could result in
substantial harm to an individual or to the public interest.
[4] Paragraph (e) is intended to
limit the issuance of lawyer subpoenas in grand jury and other criminal
proceedings to those situations in which there is a genuine need to intrude
into the client-lawyer relationship.
[5] Paragraph (f) supplements
Rule 3.6, which prohibits extrajudicial statements that have a substantial
likelihood of prejudicing an adjudicatory proceeding. In the context of a
criminal prosecution, a prosecutor's extrajudicial statement can create the
additional problem of increasing public condemnation of the accused. Although
the announcement of an indictment, for example, will necessarily have severe
consequences for the accused, a prosecutor can, and should, avoid comments
which have no legitimate law enforcement purpose and have a substantial
likelihood of increasing public opprobrium of the accused. Nothing in this
Comment is intended to restrict the statements which a prosecutor may make
which comply with Rule 3.6(b) or 3.6(c).
[6] Like other lawyers,
prosecutors are subject to Rules 5.1 and 5.3, which relate to responsibilities
regarding lawyers and nonlawyers who work for or are associated with the
lawyer's office. Paragraph (f) reminds the prosecutor of the importance of
these obligations in connection with the unique dangers of improper
extrajudicial statements in a criminal case. In addition, paragraph (f)
requires a prosecutor to exercise reasonable care to prevent persons assisting
or associated with the prosecutor from making improper extrajudicial
statements, even when such persons are not under the direct supervision of the
prosecutor. Ordinarily, the reasonable care standard will be satisfied if the
prosecutor issues the appropriate cautions to law-enforcement personnel and
other relevant individuals.
[7] When a prosecutor knows of
new, credible and material evidence creating a reasonable likelihood that a
person outside the prosecutor's jurisdiction was convicted of a crime that the
person did not commit, paragraph (g) requires prompt disclosure to the court or
other appropriate authority, such as the chief prosecutor of the jurisdiction
where the conviction occurred. If the conviction was obtained in the
prosecutor's jurisdiction, paragraph (g) requires the prosecutor to examine the
evidence and undertake further investigation to determine whether the defendant
is in fact innocent or make reasonable efforts to cause another appropriate
authority to undertake the necessary investigation, and to promptly disclose
the evidence to the court and, absent court-authorized delay, to the defendant.
Consistent with the objectives of Rules 4.2 and 4.3, disclosure to a represented
defendant must be made through the defendant's counsel, and, in the case of an
unrepresented defendant, would ordinarily be accompanied by a request to a
court for the appointment of counsel to assist the defendant in taking such
legal measures as may be appropriate.
[8] Under paragraph (h), once
the prosecutor knows of clear and convincing evidence that the defendant was
convicted of an offense that the defendant did not commit, the prosecutor must
seek to remedy the conviction. Necessary steps may include disclosure of the
evidence to the defendant, requesting that the court appoint counsel for an
unrepresented indigent defendant and, where appropriate, notifying the court
that the prosecutor has knowledge that the defendant did not commit the offense
of which the defendant was convicted.
[9] A prosecutor's independent
judgment, made in good faith, that the new evidence is not of such nature as to
trigger the obligations of sections (g) and (h), though subsequently determined
to have been erroneous, does not constitute a violation of this Rule.
SCR 20:3.9
Advocate in nonadjudicative proceedings
A lawyer representing a client before
a legislative body of administrative agency in a nonadjudicative proceeding
shall disclose that the appearance is in a representative capacity and shall
conform to the provisions of SCR 20:3.3(a) through (c), SCR 20:3.4(a) through
(c), and SCR 20:3.5.
[1] In representation before
bodies such as legislatures, municipal councils, and executive and
administrative agencies acting in a rule-making or policy-making capacity,
lawyers present facts, formulate issues and advance argument in the matters
under consideration. The decision-making body, like a court, should be able to
rely on the integrity of the submissions made to it. A lawyer appearing before
such a body must deal with it honestly and in conformity with applicable rules
of procedure. See Rules 3.3(a) through (c), 3.4(a) through (c) and 3.5.
[2] Lawyers have no exclusive
right to appear before nonadjudicative bodies, as they do before a court. The
requirements of this Rule therefore may subject lawyers to regulations
inapplicable to advocates who are not lawyers. However, legislatures and
administrative agencies have a right to expect lawyers to deal with them as
they deal with courts.
[3] This Rule only applies when
a lawyer represents a client in connection with an official hearing or meeting
of a governmental agency or a legislative body to which the lawyer or the
lawyer's client is presenting evidence or argument. It does not apply to
representation of a client in a negotiation or other bilateral transaction with
a governmental agency or in connection with an application for a license or
other privilege or the client's compliance with generally applicable reporting
requirements, such as the filing of income-tax returns. Nor does it apply to
the representation of a client in connection with an investigation or
examination of the client's affairs conducted by government investigators or
examiners. Representation in such matters is governed by Rules 4.1 through 4.4.
SCR
20:3.10 Omitted.
TRANSACTIONS WITH PERSONS
OTHER THAN CLIENTS
SCR 20:4.1
Truthfulness in statements to others
(a) In the course of representing
a client a lawyer shall not knowingly:
(1) make a false statement of a
material fact or law to a 3rd person; or
(2) fail to disclose a material
fact to a 3rd person when disclosure is necessary to avoid assisting a criminal
or fraudulent act by a client, unless disclosure is prohibited by SCR 20:1.6.
(b) Notwithstanding par. (a), SCR
20:5.3(c)(1), and SCR 20:8.4, a lawyer may advise or supervise others with
respect to lawful investigative activities.
Paragraph (b) has no counterpart
in the Model Rule. As a general matter, a lawyer may advise a client concerning
whether proposed conduct is lawful. See SCR 20:1.2(d). This is allowed even in
circumstances in which the conduct involves some form of deception, for example
the use of testers to investigate unlawful discrimination or the use of
undercover detectives to investigate theft in the workplace. When the lawyer
personally participates in the deception, however, serious questions arise. See
SCR 20:8.4(c). Paragraph (b) recognizes that, where the law expressly permits
it, lawyers may have limited involvement in certain investigative activities
involving deception.
Lawful investigative activity
may involve a lawyer as an advisor or supervisor only when the lawyer in good
faith believes there is a reasonable possibility that unlawful activity has
taken place, is taking place or will take place in the foreseeable future.
Misrepresentation
[1] A lawyer is required to be
truthful when dealing with others on a client's behalf, but generally has no
affirmative duty to inform an opposing party of relevant facts. A
misrepresentation can occur if the lawyer incorporates or affirms a statement
of another person that the lawyer knows is false. Misrepresentations can also
occur by partially true but misleading statements or omissions that are the
equivalent of affirmative false statements. For dishonest conduct that does not
amount to a false statement or for misrepresentations by a lawyer other than in
the course of representing a client, see Rule 8.4.
Statements of Fact
[2] This Rule refers to
statements of fact. Whether a particular statement should be regarded as one of
fact can depend on the circumstances. Under generally accepted conventions in
negotiation, certain types of statements ordinarily are not taken as statements
of material fact. Estimates of price or value placed on the subject of a
transaction and a party's intentions as to an acceptable settlement of a claim
are ordinarily in this category, and so is the existence of an undisclosed principal
except where nondisclosure of the principal would constitute fraud. Lawyers
should be mindful of their obligations under applicable law to avoid criminal
and tortious misrepresentation.
Crime or Fraud by Client
[3] Under Rule 1.2(d), a lawyer
is prohibited from counseling or assisting a client in conduct that the lawyer
knows is criminal or fraudulent. Paragraph (b) states a specific application of
the principle set forth in Rule 1.2(d) and addresses the situation where a
client's crime or fraud takes the form of a lie or misrepresentation.
Ordinarily, a lawyer can avoid assisting a client's crime or fraud by
withdrawing from the representation. Sometimes it may be necessary for the
lawyer to give notice of the fact of withdrawal and to disaffirm an opinion,
document, affirmation or the like. In extreme cases, substantive law may
require a lawyer to disclose information relating to the representation to
avoid being deemed to have assisted the client's crime or fraud. If the lawyer
can avoid assisting a client's crime or fraud only by disclosing this
information, then under paragraph (b) the lawyer is required to do so, unless
the disclosure is prohibited by Rule 1.6.
SCR 20:4.2
Communication with person represented by counsel
In representing a client, a lawyer
shall not communicate about the subject of the representation with a person the
lawyer knows to be represented by another lawyer in the matter, unless the
lawyer has the consent of the other lawyer or is authorized to do so by law or
a court order.
[1] This Rule contributes to the
proper functioning of the legal system by protecting a person who has chosen to
be represented by a lawyer in a matter against possible overreaching by other
lawyers who are participating in the matter, interference by those lawyers with
the client-lawyer relationship and the uncounselled disclosure of information
relating to the representation.
[2] This Rule applies to
communications with any person who is represented by counsel concerning the
matter to which the communication relates.
[3] The Rule applies even though
the represented person initiates or consents to the communication. A lawyer
must immediately terminate communication with a person if, after commencing
communication, the lawyer learns that the person is one with whom communication
is not permitted by this Rule.
[4] This Rule does not prohibit
communication with a represented person, or an employee or agent of such a
person, concerning matters outside the representation. For example, the
existence of a controversy between a government agency and a private party, or
between two organizations, does not prohibit a lawyer for either from
communicating with nonlawyer representatives of the other regarding a separate
matter. Nor does this Rule preclude communication with a represented person who
is seeking advice from a lawyer who is not otherwise representing a client in
the matter. A lawyer may not make a communication prohibited by this Rule
through the acts of another. See Rule 8.4(a). Parties to a matter may
communicate directly with each other, and a lawyer is not prohibited from
advising a client concerning a communication that the client is legally
entitled to make. Also, a lawyer having independent justification or legal
authorization for communicating with a represented person is permitted to do
so.
[5] Communications authorized by
law may include communications by a lawyer on behalf of a client who is
exercising a constitutional or other legal right to communicate with the
government. Communications authorized by law may also include investigative
activities of lawyers representing governmental entities, directly or through
investigative agents, prior to the commencement of criminal or civil
enforcement proceedings. When communicating with the accused in a criminal
matter, a government lawyer must comply with this Rule in addition to honoring
the constitutional rights of the accused. The fact that a communication does
not violate a state or federal constitutional right is insufficient to
establish that the communication is permissible under this Rule.
[6] A lawyer who is uncertain
whether a communication with a represented person is permissible may seek a
court order. A lawyer may also seek a court order in exceptional circumstances
to authorize a communication that would otherwise be prohibited by this Rule,
for example, where communication with a person represented by counsel is
necessary to avoid reasonably certain injury.
[7] In the case of a represented
organization, this Rule prohibits communications with a constituent of the
organization who supervises, directs or regularly consults with the organization's
lawyer concerning the matter or has authority to obligate the organization with
respect to the matter or whose act or omission in connection with the matter
may be imputed to the organization for purposes of civil or criminal liability.
Consent of the organization's lawyer is not required for communication with a
former constituent. If a constituent of the organization is represented in the
matter by his or her own counsel, the consent by that counsel to a
communication will be sufficient for purposes of this Rule. Compare Rule
3.4(f). In communicating with a current or former constituent of an
organization, a lawyer must not use methods of obtaining evidence that violate
the legal rights of the organization. See Rule 4.4.
[8] The prohibition on communications
with a represented person only applies in circumstances where the lawyer knows
that the person is in fact represented in the matter to be discussed. This
means that the lawyer has actual knowledge of the fact of the representation;
but such actual knowledge may be inferred from the circumstances. See Rule
1.0(f). Thus, the lawyer cannot evade the requirement of obtaining the consent
of counsel by closing eyes to the obvious.
[9] In the event the person with
whom the lawyer communicates is not known to be represented by counsel in the
matter, the lawyer's communications are subject to Rule 4.3.
SCR 20:4.3
Dealing with unrepresented person
In dealing on behalf of a client with
a person who is not represented by counsel, a lawyer shall inform such person
of the lawyer's role in the matter. When the lawyer knows or reasonably should
know that the unrepresented person misunderstands the lawyer's role in the
matter, the lawyer shall make reasonable efforts to correct the
misunderstanding. The lawyer shall not give legal advice to an unrepresented
person, other than the advice to secure counsel, if the lawyer knows or
reasonably should know that the interests of such a person are or have a
reasonable possibility of being in conflict with the interests of the client.
A municipal prosecutor's
obligations under this rule should be read in conjunction with SCR 20:3.8(d)
and (f).
This Wisconsin Supreme Court
Rule differs from the Model Rule in requiring lawyers to inform unrepresented
persons of the lawyer's role in the matter, whereas the Model Rule requires
only that the lawyer not state or imply that the lawyer is disinterested. A
similar obligation to clarify the lawyer's role is expressed in SCR 20:1.13(f),
SCR 20:2.4, SCR 20:3.8(b), and SCR 20:4.1.
[1] An unrepresented person,
particularly one not experienced in dealing with legal matters, might assume
that a lawyer is disinterested in loyalties or is a disinterested authority on
the law even when the lawyer represents a client. In order to avoid a
misunderstanding, a lawyer will typically need to identify the lawyer's client
and, where necessary, explain that the client has interests opposed to those of
the unrepresented person. For misunderstandings that sometimes arise when a
lawyer for an organization deals with an unrepresented constituent, see Rule
1.13(f).
[2] The Rule distinguishes
between situations involving unrepresented persons whose interests may be
adverse to those of the lawyer's client and those in which the person's
interests are not in conflict with the client's. In the former situation, the
possibility that the lawyer will compromise the unrepresented person's
interests is so great that the Rule prohibits the giving of any advice, apart
from the advice to obtain counsel. Whether a lawyer is giving impermissible
advice may depend on the experience and sophistication of the unrepresented
person, as well as the setting in which the behavior and comments occur. This
Rule does not prohibit a lawyer from negotiating the terms of a transaction or
settling a dispute with an unrepresented person. So long as the lawyer has
explained that the lawyer represents an adverse party and is not representing
the person, the lawyer may inform the person of the terms on which the lawyer's
client will enter into an agreement or settle a matter, prepare documents that
require the person's signature and explain the lawyer's own view of the meaning
of the document or the lawyer's view of the underlying legal obligations.
SCR 20:4.4
Respect for rights of 3rd persons
(a) In representing a client, a
lawyer shall not use means that have no substantial purpose other than to
embarrass, delay, or burden a 3rd person, or use methods of obtaining evidence
that violate the legal rights of such a person.
(b) A lawyer who receives a
document relating to the representation of the lawyer's client and knows or
reasonably should know that the document was inadvertently sent shall promptly
notify the sender.
[1] Responsibility to a client
requires a lawyer to subordinate the interests of others to those of the
client, but that responsibility does not imply that a lawyer may disregard the
rights of third persons. It is impractical to catalogue all such rights, but
they include legal restrictions on methods of obtaining evidence from third
persons and unwarranted intrusions into privileged relationships, such as the
client-lawyer relationship.
[2] Paragraph (b) recognizes
that lawyers sometimes receive documents that were mistakenly sent or produced
by opposing parties or their lawyers. If a lawyer knows or reasonably should
know that such a document was sent inadvertently, then this Rule requires the
lawyer to promptly notify the sender in order to permit that person to take
protective measures. Whether the lawyer is required to take additional steps,
such as returning the original document, is a matter of law beyond the scope of
these Rules, as is the question of whether the privileged status of a document
has been waived. Similarly, this Rule does not address the legal duties of a
lawyer who receives a document that the lawyer knows or reasonably should know
may have been wrongfully obtained by the sending person. For purposes of this
Rule, "document" includes e-mail or other electronic modes of
transmission subject to being read or put into readable form.
[3] Some lawyers may choose to
return a document unread, for example, when the lawyer learns before receiving
the document that it was inadvertently sent to the wrong address. Where a
lawyer is not required by applicable law to do so, the decision to voluntarily
return such a document is a matter of professional judgment ordinarily reserved
to the lawyer. See Rules 1.2 and 1.4.
A lawyer appointed to act as a
guardian ad litem or as an attorney for the best interests of an
individual represents, and shall act in, the individual's best interests, even
if doing so is contrary to the individual's wishes. A lawyer so appointed shall
comply with the Rules of Professional Conduct that are consistent with the
lawyer's role in representing the best interests of the individual rather than
the individual personally.
The Model Rules do not contain a
counterpart provision. This rule reflects established case law that a guardian
ad litem in
This rule expressly recognizes
that a lawyer who represents the best interests of the individual does not have
a client in the traditional sense but must comply with the Rules of
Professional Conduct to the extent the rules apply.
LAW FIRMS AND ASSOCIATIONS
SCR 20:5.1 Responsibilities of partners, managers, and
supervisory lawyers
(a) A partner in a law firm, and
a lawyer who individually or together with other lawyers possesses comparable
managerial authority in a law firm, shall make reasonable efforts to ensure
that the firm has in effect measures giving reasonable assurance that all
lawyers in the firm conform to the Rules of Professional Conduct.
(b) A lawyer having direct
supervisory authority over another lawyer shall make reasonable efforts to
ensure that the other lawyer conforms to the Rules of Professional Conduct.
(c) A lawyer shall be responsible
for another lawyer's violation of the Rules of Professional Conduct if:
(1) the lawyer orders or, with
knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or
has comparable managerial authority in the law firm in which the other lawyer
practices, or has direct supervisory authority over the other lawyer, and knows
of the conduct at a time when its consequences can be avoided or mitigated but
fails to take reasonable remedial action.
[1] Paragraph (a) applies to
lawyers who have managerial authority over the professional work of a firm. See
Rule 1.0(c). This includes members of a partnership, the shareholders in a law
firm organized as a professional corporation, and members of other associations
authorized to practice law; lawyers having comparable managerial authority in a
legal services organization or a law department of an enterprise or government
agency; and lawyers who have intermediate managerial responsibilities in a
firm. Paragraph (b) applies to lawyers who have supervisory authority over the
work of other lawyers in a firm.
[2] Paragraph (a) requires
lawyers with managerial authority within a firm to make reasonable efforts to
establish internal policies and procedures designed to provide reasonable
assurance that all lawyers in the firm will conform to the Rules of
Professional Conduct. Such policies and procedures include those designed to
detect and resolve conflicts of interest, identify dates by which actions must
be taken in pending matters, account for client funds and property and ensure
that inexperienced lawyers are properly supervised.
[3] Other measures that may be
required to fulfill the responsibility prescribed in paragraph (a) can depend
on the firm's structure and the nature of its practice. In a small firm of
experienced lawyers, informal supervision and periodic review of compliance
with the required systems ordinarily will suffice. In a large firm, or in
practice situations in which difficult ethical problems frequently arise, more
elaborate measures may be necessary. Some firms, for example, have a procedure
whereby junior lawyers can make confidential referral of ethical problems
directly to a designated senior partner or special committee. See Rule 5.2. Firms,
whether large or small, may also rely on continuing legal education in
professional ethics. In any event, the ethical atmosphere of a firm can
influence the conduct of all its members and the partners may not assume that
all lawyers associated with the firm will inevitably conform to the Rules.
[4] Paragraph (c) expresses a
general principle of personal responsibility for acts of another. See also Rule
8.4(a).
[5] Paragraph (c)(2) defines the
duty of a partner or other lawyer having comparable managerial authority in a
law firm, as well as a lawyer who has direct supervisory authority over
performance of specific legal work by another lawyer. Whether a lawyer has
supervisory authority in particular circumstances is a question of fact.
Partners and lawyers with comparable authority have at least indirect
responsibility for all work being done by the firm, while a partner or manager
in charge of a particular matter ordinarily also has supervisory responsibility
for the work of other firm lawyers engaged in the matter. Appropriate remedial
action by a partner or managing lawyer would depend on the immediacy of that
lawyer's involvement and the seriousness of the misconduct. A supervisor is
required to intervene to prevent avoidable consequences of misconduct if the
supervisor knows that the misconduct occurred. Thus, if a supervising lawyer
knows that a subordinate misrepresented a matter to an opposing party in
negotiation, the supervisor as well as the subordinate has a duty to correct
the resulting misapprehension.
[6] Professional misconduct by a
lawyer under supervision could reveal a violation of paragraph (b) on the part
of the supervisory lawyer even though it does not entail a violation of
paragraph (c) because there was no direction, ratification or knowledge of the
violation.
[7] Apart from this Rule and
Rule 8.4(a), a lawyer does not have disciplinary liability for the conduct of a
partner, associate or subordinate. Whether a lawyer may be liable civilly or
criminally for another lawyer's conduct is a question of law beyond the scope
of these Rules.
[8] The duties imposed by this
Rule on managing and supervising lawyers do not alter the personal duty of each
lawyer in a firm to abide by the Rules of Professional Conduct. See Rule
5.2(a).
SCR 20:5.2
Responsibilities of a subordinate lawyer
(a) A lawyer is bound by the
Rules of Professional Conduct notwithstanding that the lawyer acted at the
direction of another person.
(b) A subordinate lawyer does not
violate the Rules of Professional Conduct if that lawyer acts in accordance
with a supervisory lawyer's reasonable resolution of an arguable question of
professional duty.
[1] Although a lawyer is not
relieved of responsibility for a violation by the fact that the lawyer acted at
the direction of a supervisor, that fact may be relevant in determining whether
a lawyer had the knowledge required to render conduct a violation of the Rules.
For example, if a subordinate filed a frivolous pleading at the direction of a
supervisor, the subordinate would not be guilty of a professional violation
unless the subordinate knew of the document's frivolous character.
[2] When lawyers in a
supervisor-subordinate relationship encounter a matter involving professional
judgment as to ethical duty, the supervisor may assume responsibility for
making the judgment. Otherwise a consistent course of action or position could
not be taken. If the question can reasonably be answered only one way, the duty
of both lawyers is clear and they are equally responsible for fulfilling it.
However, if the question is reasonably arguable, someone has to decide upon the
course of action. That authority ordinarily reposes in the supervisor, and a
subordinate may be guided accordingly. For example, if a question arises
whether the interests of two clients conflict under Rule 1.7, the supervisor's
reasonable resolution of the question should protect the subordinate
professionally if the resolution is subsequently challenged.
SCR
20:5.3 Responsibilities regarding
nonlawyer assistants
With respect to a nonlawyer employed
or retained by or associated with a lawyer:
(a) a partner, and a lawyer who
individually or together with other lawyers possesses comparable managerial
authority in a law firm shall make reasonable efforts to ensure that the firm
has in effect measures giving reasonable assurance that the person's conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct
supervisory authority over the nonlawyer shall make reasonable efforts to
ensure that the person's conduct is compatible with the professional
obligations of the lawyer; and
(c) a lawyer shall be responsible
for conduct of such a person that would be a violation of the Rules of
Professional Conduct if engaged in by a lawyer if:
(1) the lawyer orders or, with
the knowledge of the specific conduct, ratifies the conduct involved; or
(2) the lawyer is a partner or
has comparable managerial authority in the law firm in which the person is
employed, or has direct supervisory authority over the person, and knows of the
conduct at a time when its consequences can be avoided or mitigated but fails
to take reasonable remedial action.
[1] Lawyers generally employ
assistants in their practice, including secretaries, investigators, law student
interns, and paraprofessionals. Such assistants, whether employees or
independent contractors, act for the lawyer in rendition of the lawyer's
professional services. A lawyer must give such assistants appropriate
instruction and supervision concerning the ethical aspects of their employment,
particularly regarding the obligation not to disclose information relating to
representation of the client, and should be responsible for their work product.
The measures employed in supervising nonlawyers should take account of the fact
that they do not have legal training and are not subject to professional
discipline.
[2] Paragraph (a) requires
lawyers with managerial authority within a law firm to make reasonable efforts
to establish internal policies and procedures designed to provide reasonable
assurance that nonlawyers in the firm will act in a way compatible with the
Rules of Professional Conduct. See Comment [1] to Rule 5.1. Paragraph (b)
applies to lawyers who have supervisory authority over the work of a nonlawyer.
Paragraph (c) specifies the circumstances in which a lawyer is responsible for
conduct of a nonlawyer that would be a violation of the Rules of Professional
Conduct if engaged in by a lawyer.
SCR
20:5.4 Professional independence of a
lawyer
(a) A lawyer or law firm shall
not share legal fees with a nonlawyer, except that:
(1) an agreement by a lawyer with
the lawyer's firm, partner, or associate may provide for the payment of money,
over a reasonable period of time after the lawyer's death, to the lawyer's
estate or to one or more specified persons;
(2) a lawyer who purchases the
practice of a deceased, disabled, or disappeared lawyer may, pursuant to the
provisions of SCR 20:1.17, pay to the estate or other representative of that
lawyer the agreed-upon purchase price;
(3) a lawyer or law firm may
include nonlawyer employees in a compensation or retirement plan, even though
the plan is based in whole or in part on a profit-sharing arrangement; and
(4) a lawyer may share
court-awarded legal fees with a nonprofit organization that employed, retained
or recommended employment of the lawyer in the matter.
(b) A lawyer shall not form a
partnership with a nonlawyer if any of the activities of the partnership
consist of the practice of law.
(c) A lawyer shall not permit a
person who recommends, employs, or pays the lawyer to render legal services for
another to direct or regulate the lawyer's professional judgment in rendering
such legal services.
(d) A lawyer shall not practice
with or in the form of a professional corporation or association authorized to
practice law for a profit, if:
(1) a nonlawyer owns any interest
therein, except that a fiduciary representative of the estate of a lawyer may
hold the stock or interest of the lawyer for a reasonable time during
administration;
(2) a nonlawyer is a corporate
director or officer thereof or occupies the position of similar responsibility
in any form of association other than a corporation; or
(3) a nonlawyer has the right to
direct or control the professional judgment of a lawyer.
[1] The provisions of this Rule
express traditional limitations on sharing fees. These limitations are to
protect the lawyer's professional independence of judgment. Where someone other
than the client pays the lawyer's fee or salary, or recommends employment of
the lawyer, that arrangement does not modify the lawyer's obligation to the
client. As stated in paragraph (c), such arrangements should not interfere with
the lawyer's professional judgment.
[2] This Rule also expresses traditional
limitations on permitting a third party to direct or regulate the lawyer's
professional judgment in rendering legal services to another. See also Rule
1.8(f) (lawyer may accept compensation from a third party as long as there is
no interference with the lawyer's independent professional judgment and the
client gives informed consent).
SCR 20:5.5
Unauthorized practice of law; multijurisdictional practice of law
(a) A lawyer shall not:
(1) practice law in a jurisdiction where
doing so violates the regulation of the legal profession in that jurisdiction
except that a lawyer admitted to practice in Wisconsin does not violate this
rule by conduct in another jurisdiction that is permitted in Wisconsin under
SCR 20:5.5 (c) and (d) for lawyers not admitted in Wisconsin; or
(2) assist another in practicing law
in a jurisdiction where doing so violates the regulation of the legal
profession in that jurisdiction.
(b) A lawyer who is not admitted to
practice in this jurisdiction shall not:
(1) except
as authorized by this rule or other law, establish an office or maintain a
systematic and continuous presence in this jurisdiction for the practice of
law; or
(2) hold
out to the public or otherwise represent that the lawyer is admitted to the
practice of law in this jurisdiction.
(c) Except as authorized by this rule,
a lawyer who is not admitted to practice in this jurisdiction but who is
admitted to practice in another jurisdiction of the United States and not
disbarred or suspended from practice in any jurisdiction for disciplinary
reasons or for medical incapacity, may not provide legal services in this
jurisdiction except when providing services on an occasional basis in this
jurisdiction that:
(1) are undertaken in association with
a lawyer who is admitted to practice in this jurisdiction and who actively
participates in the matter; or
(2) are in, or reasonably related to,
a pending or potential proceeding before a tribunal in this or another
jurisdiction, if the lawyer, or a person the lawyer is assisting, is authorized
by law or order to appear in such proceeding or reasonably expects to be so
authorized; or
(3) are in, or reasonably related to,
a pending or potential arbitration, mediation, or other alternative dispute
resolution proceeding in this or another jurisdiction, if the services arise
out of, or are reasonably related to, the lawyer's practice in a jurisdiction
in which the lawyer is admitted to practice and are not services for which the
forum requires pro hac vice admission; or
(4) are not within subsections (c)(2)
or (c)(3) and arise out of, or are reasonably related to, the lawyer's practice
in a jurisdiction in which the lawyer is admitted to practice.
(d) A lawyer admitted to practice in
another United States jurisdiction or in a foreign jurisdiction, who is not
disbarred or suspended from practice in any jurisdiction for disciplinary
reasons or medical incapacity, may provide legal services in this jurisdiction
that:
(1) are provided to the lawyer's
employer or its organizational affiliates after compliance with SCR 10.03 (4)
(f), and are not services for which the forum requires pro hac vice admission;
or
(2) are services that the lawyer is
authorized to provide by federal law or other law of this jurisdiction.
(e) A lawyer admitted to practice in
another jurisdiction of the United States or a foreign jurisdiction who
provides legal services in this jurisdiction pursuant to sub. (c) and (d) above
shall consent to the appointment of the Clerk of the Wisconsin Supreme Court as
agent upon whom service of process may be made for all actions against the
lawyer or the lawyer's firm that may arise out of the lawyer's participation in
legal matters in this jurisdiction.
See also SCR 10.03(4)
(requirements for admission pro hac vice and registration of in-house counsel).
This Wisconsin Supreme Court
Rule differs from the Model Rule in that an attorney is not precluded from
seeking admission pro hac vice if the attorney is administratively suspended
from practice in a jurisdiction other than the attorney's primary jurisdiction
of practice. An attorney must not be
suspended or disbarred in his or her primary jurisdiction of practice. Due to substantive and numbering differences,
special care should be taken in consulting the ABA Comment.
[1] A lawyer may practice law
only in a jurisdiction in which the lawyer is authorized to practice. A lawyer
may be admitted to practice law in a jurisdiction on a regular basis or may be
authorized by court rule or order or by law to practice for a limited purpose
or on a restricted basis. Paragraph (a) applies to unauthorized practice of law
by a lawyer, whether through the lawyer's direct action or by the lawyer assisting
another person.
[2] The definition of the
practice of law is established by law and varies from one jurisdiction to
another. Whatever the definition,
limiting the practice of law to members of the bar protects the public against
rendition of legal services by unqualified persons. This Rule does not prohibit
a lawyer from employing the services of paraprofessionals and delegating
functions to them, so long as the lawyer supervises the delegated work and
retains responsibility for their work. See Rule 5.3.
[3] A lawyer may provide
professional advice and instruction to nonlawyers whose employment requires
knowledge of the law; for example, claims adjusters, employees of financial or
commercial institutions, social workers, accountants and persons employed in
government agencies. Lawyers also may assist independent nonlawyers, such as
paraprofessionals, who are authorized by the law of a jurisdiction to provide
particular law-related services. In
addition, a lawyer may counsel nonlawyers who wish to proceed pro se.
[4] Other than as authorized by
law or this Rule, a lawyer who is not admitted to practice generally in this
jurisdiction violates paragraph (b) if the lawyer establishes an office or
other systematic and continuous presence in this jurisdiction for the practice
of law. Presence may be systematic and continuous even if the lawyer is not
physically present here. Such a lawyer must not hold out to the public or
otherwise represent that the lawyer is admitted to practice law in this
jurisdiction. See also Rules 7.1(a) and 7.5(b).
[5] There are occasions in which
a lawyer admitted to practice in another United States jurisdiction, and not
disbarred or suspended from practice in any jurisdiction, may provide legal
services on a temporary basis in this jurisdiction under circumstances that do
not create an unreasonable risk to the interests of their clients, the public
or the courts. Paragraph (c) identifies four such circumstances. The fact that
conduct is not so identified does not imply that the conduct is or is not
authorized. With the exception of paragraphs (d)(1) and (d)(2), this Rule does
not authorize a lawyer to establish an office or other systematic and
continuous presence in this jurisdiction without being admitted to practice
generally here.
[6] There is no single test to
determine whether a lawyer's services are provided on a "temporary
basis" in this jurisdiction, and may therefore be permissible under
paragraph (c). Services may be "temporary" even though the lawyer provides
services in this jurisdiction on a recurring basis, or for an extended period
of time, as when the lawyer is representing a client in a single lengthy
negotiation or litigation.
[7] Paragraphs (c) and (d) apply
to lawyers who are admitted to practice law in any
[8] Paragraph (c)(1) recognizes
that the interests of clients and the public are protected if a lawyer admitted
only in another jurisdiction associates with a lawyer licensed to practice in
this jurisdiction. For this paragraph to apply, however, the lawyer admitted to
practice in this jurisdiction must actively participate in and share
responsibility for the representation of the client.
[9] Lawyers not admitted to
practice generally in a jurisdiction may be authorized by law or order of a
tribunal or an administrative agency to appear before the tribunal or agency.
This authority may be granted pursuant to formal rules governing admission pro
hac vice or pursuant to informal practice of the tribunal or agency. Under
paragraph (c)(2), a lawyer does not violate this Rule when the lawyer appears
before a tribunal or agency pursuant to such authority. To the extent that a
court rule or other law of this jurisdiction requires a lawyer who is not
admitted to practice in this jurisdiction to obtain admission pro hac vice
before appearing before a tribunal or administrative agency, this Rule requires
the lawyer to obtain that authority.
[10] Paragraph (c)(2) also
provides that a lawyer rendering services in this jurisdiction on a temporary
basis does not violate this Rule when the lawyer engages in conduct in anticipation
of a proceeding or hearing in a jurisdiction in which the lawyer is authorized
to practice law or in which the lawyer reasonably expects to be admitted pro
hac vice. Examples of such conduct include meetings with the client, interviews
of potential witnesses, and the review of documents. Similarly, a lawyer
admitted only in another jurisdiction may engage in conduct temporarily in this
jurisdiction in connection with pending litigation in another jurisdiction in
which the lawyer is or reasonably expects to be authorized to appear, including
taking depositions in this jurisdiction.
[11] When a lawyer has been or
reasonably expects to be admitted to appear before a court or administrative
agency, paragraph (c)(2) also permits conduct by lawyers who are associated
with that lawyer in the matter, but who do not expect to appear before the
court or administrative agency. For example, subordinate lawyers may conduct
research, review documents, and attend meetings with witnesses in support of
the lawyer responsible for the litigation.
[12] Paragraph (c)(3) permits a
lawyer admitted to practice law in another jurisdiction to perform services on
a temporary basis in this jurisdiction if those services are in or reasonably
related to a pending or potential arbitration, mediation, or other alternative
dispute resolution proceeding in this or another jurisdiction, if the services
arise out of or are reasonably related to the lawyer's practice in a
jurisdiction in which the lawyer is admitted to practice. The lawyer, however,
must obtain admission pro hac vice in the case of a court-annexed arbitration
or mediation or otherwise if court rules or law so require.
[13] Paragraph (c)(4) permits a
lawyer admitted in another jurisdiction to provide certain legal services on a
temporary basis in this jurisdiction that arise out of or are reasonably
related to the lawyer's practice in a jurisdiction in which the lawyer is
admitted but are not within paragraphs (c)(2) or (c)(3). These services include
both legal services and services that nonlawyers may perform but that are
considered the practice of law when performed by lawyers.
[14] Paragraphs (c)(3) and
(c)(4) require that the services arise out of or be reasonably related to the
lawyer's practice in a jurisdiction in which the lawyer is admitted. A variety
of factors evidence such a relationship. The lawyer's client may have been
previously represented by the lawyer, or may be resident in or have substantial
contacts with the jurisdiction in which the lawyer is admitted. The matter,
although involving other jurisdictions, may have a significant connection with
that jurisdiction. In other cases,
significant aspects of the lawyer's work might be conducted in that
jurisdiction or a significant aspect of the matter may involve the law of that
jurisdiction. The necessary relationship
might arise when the client's activities or the legal issues involve multiple
jurisdictions, such as when the officers of a multinational corporation survey
potential business sites and seek the services of their lawyer in assessing the
relative merits of each. In addition,
the services may draw on the lawyer's recognized expertise developed through
the regular practice of law on behalf of clients in matters involving a
particular body of federal, nationally-uniform, foreign, or international law.
Lawyers desiring to provide pro bono legal services on a temporary basis in a
jurisdiction that has been affected by a major disaster, but in which they are
not otherwise authorized to practice law, as well as lawyers from the affected
jurisdiction who seek to practice law temporarily in another jurisdiction, but
in which they are not otherwise authorized to practice law, should consult the
[Model Court Rule on Provision of Legal Services Following Determination of
Major Disaster].
[15] Paragraph (d) identifies
two circumstances in which a lawyer who is admitted to practice in another
[16] Paragraph (d)(1) applies to
a lawyer who is employed by a client to provide legal services to the client or
its organizational affiliates, i.e., entities that control, are controlled by,
or are under common control with the employer. This paragraph does not
authorize the provision of personal legal services to the employer's officers
or employees. The paragraph applies to in-house corporate lawyers, government
lawyers and others who are employed to render legal services to the
employer. The lawyer's ability to
represent the employer outside the jurisdiction in which the lawyer is licensed
generally serves the interests of the employer and does not create an
unreasonable risk to the client and others because the employer is well
situated to assess the lawyer's qualifications and the quality of the lawyer's
work.
[17] If an employed lawyer
establishes an office or other systematic presence in this jurisdiction for the
purpose of rendering legal services to the employer, the lawyer may be subject
to registration or other requirements, including assessments for client protection
funds and mandatory continuing legal education.
[18] Paragraph (d)(2) recognizes
that a lawyer may provide legal services in a jurisdiction in which the lawyer
is not licensed when authorized to do so by federal or other law, which
includes statute, court rule, executive regulation or judicial precedent.
[19] A lawyer who practices law
in this jurisdiction pursuant to paragraphs (c) or (d) or otherwise is subject
to the disciplinary authority of this jurisdiction. See Rule 8.5(a).
[20] In some circumstances, a
lawyer who practices law in this jurisdiction pursuant to paragraphs (c) or (d)
may have to inform the client that the lawyer is not licensed to practice law
in this jurisdiction. For example, that may be required when the representation
occurs primarily in this jurisdiction and requires knowledge of the law of this
jurisdiction. See Rule 1.4(b).
[21] Paragraphs (c) and (d) do
not authorize communications advertising legal services to prospective clients
in this jurisdiction by lawyers who are admitted to practice in other
jurisdictions. Whether and how lawyers may communicate the availability of
their services to prospective clients in this jurisdiction is governed by Rules
7.1 to 7.5.
SCR
20:5.6 Restrictions on right to practice
A lawyer shall not participate in
offering or making:
(a) a partnership, shareholders,
operating, employment, or other similar type of agreement that restricts the
right of a lawyer to practice after termination of the relationship, except an
agreement concerning benefits upon retirement; or
(b) an agreement in which a
restriction on the lawyer's right to practice is part of the settlement of a
client controversy.
[1] An agreement restricting the
right of lawyers to practice after leaving a firm not only limits their
professional autonomy but also limits the freedom of clients to choose a
lawyer. Paragraph (a) prohibits such agreements except for restrictions
incident to provisions concerning retirement benefits for service with the
firm.
[2] Paragraph (b) prohibits a
lawyer from agreeing not to represent other persons in connection with settling
a claim on behalf of a client.
[3] This Rule does not apply to
prohibit restrictions that may be included in the terms of the sale of a law
practice pursuant to Rule 1.17.
SCR 20:5.7
Limited liability legal practice
(a)(1) A lawyer may be a member
of a law firm that is organized as a limited liability organization solely to
render professional legal services under the laws of this state, including chs.
178 and 183 and subch. XIX of ch. 180.
The lawyer may practice in or as a limited liability organization if the
lawyer is otherwise licensed to practice law in this state and the organization
is registered under sub. (b).
(2) Nothing in this rule or the
laws under which the lawyer or law firm is organized shall relieve a lawyer
from personal liability for any acts, errors or omissions of the lawyer arising
out of the performance of professional services.
(b) A lawyer or law firm that is
organized as a limited liability organization shall file an annual registration
with the state bar of Wisconsin in a form and with a filing fee that shall be
determined by the state bar. The annual
registration shall be signed by a lawyer who is licensed to practice law in
this state and who holds an ownership interest in the organization seeking to
register under this rule. The annual
registration shall include all of the following:
(1) The name and address of the
organization.
(2) The names, residence
addresses, states or jurisdictions where licensed to practice law, and attorney
registration numbers of the lawyers in the organization and their ownership
interest in the organization.
(3) A representation that at the
time of the filing each lawyer in the organization is in good standing in this
state or, if licensed to practice law elsewhere, in the states or jurisdictions
in which he or she is licensed.
(4) A certificate of insurance
issued by an insurance carrier certifying that it has issued to the
organization a professional liability policy to the organization as provided in
sub. (bm).
(5) Such other information as may
be required from time to time by the state bar of Wisconsin.
(bm) The professional liability
policy under sub. (b)(4) shall identify the name of the professional liability
carrier, the policy number, the expiration date and the limits and
deductible. Such professional liability
insurance shall provide not less than the following limits of liability:
(1) For a firm composed of 1 to 3
lawyers, $100,000 of combined indemnity and defense cost coverage per claim,
with a $300,000 aggregate combined indemnity and defense cost coverage amount
per policy period.
(2) For a firm composed of 4 to 6
lawyers, $250,000 of combined indemnity and defense cost coverage per claim,
with $750,000 aggregate combined indemnity and defense cost coverage amount per
policy period.
(3) For a firm composed of 7 to
14 lawyers, $500,000 of combined indemnity and defense cost coverage per claim,
with $1,000,000 aggregate combined indemnity and defense cost coverage amount
per policy period.
(4) For a firm composed of 15 to
30 lawyers, $1,000,000 of combined indemnity and defense cost coverage per
claim, with $2,000,000 aggregate combined indemnity and defense cost coverage
amount per policy period.
(5) For a firm composed of 31 to
50 lawyers, $4,000,000 of combined indemnity and defense cost coverage per
claim, with $4,000,000 aggregate combined indemnity and defense cost coverage
amount per policy period.
(6) For a firm composed of 51 or
more lawyers, $10,000,000 of combined indemnity and defense cost coverage per
claim, with $10,000,000 aggregate combined indemnity and defense cost coverage
amount per policy period.
(c) Nothing in this rule or the
laws under which a lawyer or law firm is organized shall diminish a lawyer's or
law firm's obligations or responsibilities under any provisions of this
chapter.
(d) A law firm that is organized
as a limited liability organization under the laws of any other state or
jurisdiction or of the United States solely for the purpose of rendering
professional legal services that is authorized to do business in Wisconsin and
that has a least one lawyer licensed to practice law in Wisconsin may register
under this rule by complying with the provisions of sub. (b).
(e) A lawyer or law firm that is
organized as a limited liability organization shall do all of the following:
(1) Include a written designation
of the limited liability structure as part of its name.
(2) Provide to clients and
potential clients in writing a plain-English summary of the features of the
limited liability law under which it is organized and the applicable provisions
of this chapter.
This Wisconsin Supreme Court
Rule has no counterpart in the Model Rules. Model Rule 5.7, concerning
law-related services, is not part of these rules.
PUBLIC SERVICE
SCR 20:6.1
Voluntary pro bono publico service
Every lawyer has a professional
responsibility to provide legal services to those unable to pay. A lawyer
should aspire to render at least 50 hours of pro bono publico legal services
per year. In fulfilling this responsibility the lawyer should:
(a) provide a substantial
majority of the 50 hours of legal services without fee or expectation of fee
to:
(1) persons of limited means or
(2) charitable, religious, civic,
community, governmental and educational organizations in matters that are designed
primarily to address the needs of persons of limited means; and
(b) provide any additional
services through:
(1) delivery of legal services at
no fee or substantially reduced fee to individuals, groups or organizations
seeking to secure or protect civil rights, civil liberties or public rights, or
charitable, religious, civic, community, governmental and educational
organizations in matters in furtherance of their organizational purposes, where
the payment of standard legal fees would significantly deplete the
organization's economic resources or would be otherwise inappropriate;
(2) delivery of legal services at
a substantially reduced fee to persons of limited means; or
(3) participation in activities
for improving the law, the legal system or the legal profession.
In addition, a lawyer should
voluntarily contribute financial support to organizations that provide legal
services to persons of limited means.
[1] Every lawyer, regardless of
professional prominence or professional work load, has a responsibility to
provide legal services to those unable to pay, and personal involvement in the
problems of the disadvantaged can be one of the most rewarding experiences in
the life of a lawyer. The American Bar Association urges all lawyers to provide
a minimum of 50 hours of pro bono services annually. States, however, may
decide to choose a higher or lower number of hours of annual service (which may
be expressed as a percentage of a lawyer's professional time) depending upon
local needs and local conditions. It is recognized that in some years a lawyer
may render greater or fewer hours than the annual standard specified, but
during the course of his or her legal career, each lawyer should render on
average per year, the number of hours set forth in this Rule. Services can be
performed in civil matters or in criminal or quasi—criminal matters for which
there is no government obligation to provide funds for legal representation,
such as post—conviction death penalty appeal cases.
[2] Paragraphs (a)(1) and (2)
recognize the critical need for legal services that exists among persons of
limited means by providing that a substantial majority of the legal services rendered
annually to the disadvantaged be furnished without fee or expectation of fee.
Legal services under these paragraphs consist of a full range of activities,
including individual and class representation, the provision of legal advice,
legislative lobbying, administrative rule making and the provision of free
training or mentoring to those who represent persons of limited means. The
variety of these activities should facilitate participation by government
lawyers, even when restrictions exist on their engaging in the outside practice
of law.
[3] Persons eligible for legal
services under paragraphs (a)(1) and (2) are those who qualify for
participation in programs funded by the Legal Services Corporation and those
whose incomes and financial resources are slightly above the guidelines
utilized by such programs but nevertheless, cannot afford counsel. Legal
services can be rendered to individuals or to organizations such as homeless
shelters, battered women's centers and food pantries that serve those of limited
means. The term "governmental organizations" includes, but is not
limited to, public protection programs and sections of governmental or public
sector agencies.
[4] Because service must be
provided without fee or expectation of fee, the intent of the lawyer to render
free legal services is essential for the work performed to fall within the
meaning of paragraphs (a)(1) and (2). Accordingly, services rendered cannot be
considered pro bono if an anticipated fee is uncollected, but the award of
statutory attorneys' fees in a case originally accepted as pro bono would not
disqualify such services from inclusion under this section. Lawyers who do
receive fees in such cases are encouraged to contribute an appropriate portion
of such fees to organizations or projects that benefit persons of limited
means.
[5] While it is possible for a
lawyer to fulfill the annual responsibility to perform pro bono services
exclusively through activities described in paragraphs (a)(1) and (2), to the
extent that any hours of service remained unfulfilled, the remaining commitment
can be met in a variety of ways as set forth in paragraph (b). Constitutional,
statutory or regulatory restrictions may prohibit or impede government and
public sector lawyers and judges from performing the pro bono services outlined
in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply,
government and public sector lawyers and judges may fulfill their pro bono
responsibility by performing services outlined in paragraph (b).
[6] Paragraph (b)(1) includes
the provision of certain types of legal services to those whose incomes and
financial resources place them above limited means. It also permits the pro
bono lawyer to accept a substantially reduced fee for services. Examples of the
types of issues that may be addressed under this paragraph include First
Amendment claims, Title VII claims and environmental protection claims.
Additionally, a wide range of organizations may be represented, including
social service, medical research, cultural and religious groups.
[7] Paragraph (b)(2) covers
instances in which lawyers agree to and receive a modest fee for furnishing
legal services to persons of limited means. Participation in judicare programs
and acceptance of court appointments in which the fee is substantially below a
lawyer's usual rate are encouraged under this section.
[8] Paragraph (b)(3) recognizes
the value of lawyers engaging in activities that improve the law, the legal
system or the legal profession. Serving on bar association committees, serving
on boards of pro bono or legal services programs, taking part in Law Day
activities, acting as a continuing legal education instructor, a mediator or an
arbitrator and engaging in legislative lobbying to improve the law, the legal system
or the profession are a few examples of the many activities that fall within
this paragraph.
[9] Because the provision of pro
bono services is a professional responsibility, it is the individual ethical
commitment of each lawyer. Nevertheless, there may be times when it is not
feasible for a lawyer to engage in pro bono services. At such times a lawyer
may discharge the pro bono responsibility by providing financial support to
organizations providing free legal services to persons of limited means. Such
financial support should be reasonably equivalent to the value of the hours of
service that would have otherwise been provided. In addition, at times it may
be more feasible to satisfy the pro bono responsibility collectively, as by a
firm's aggregate pro bono activities.
[10] Because the efforts of
individual lawyers are not enough to meet the need for free legal services that
exists among persons of limited means, the government and the profession have
instituted additional programs to provide those services. Every lawyer should
financially support such programs, in addition to either providing direct pro
bono services or making financial contributions when pro bono service is not
feasible.
[11] Law firms should act
reasonably to enable and encourage all lawyers in the firm to provide the pro
bono legal services called for by this Rule.
[12] The responsibility set
forth in this Rule is not intended to be enforced through disciplinary process.
SCR 20:6.2
Accepting appointments
A lawyer shall not seek to avoid
appointment by a tribunal to represent a person except for good cause, such as:
(a) representing the client is
likely to result in violation of the Rules of Professional Conduct or other
law;
(b) representing the client is
likely to result in an unreasonable financial burden on the lawyer; or
(c) the client or the cause is so
repugnant to the lawyer as to be likely to impair the client—lawyer
relationship or the lawyer's ability to represent the client.
[1] A lawyer ordinarily is not
obliged to accept a client whose character or cause the lawyer regards as
repugnant. The lawyer's freedom to select clients is, however, qualified. All
lawyers have a responsibility to assist in providing pro bono publico service.
See Rule 6.1. An individual lawyer fulfills this responsibility by accepting a
fair share of unpopular matters or indigent or unpopular clients. A lawyer may
also be subject to appointment by a court to serve unpopular clients or persons
unable to afford legal services.
Appointed Counsel
[2] For good cause a lawyer may
seek to decline an appointment to represent a person who cannot afford to
retain counsel or whose cause is unpopular. Good cause exists if the lawyer
could not handle the matter competently, see Rule 1.1, or if undertaking the
representation would result in an improper conflict of interest, for example,
when the client or the cause is so repugnant to the lawyer as to be likely to
impair the client-lawyer relationship or the lawyer's ability to represent the
client. A lawyer may also seek to decline an appointment if acceptance would be
unreasonably burdensome, for example, when it would impose a financial
sacrifice so great as to be unjust.
[3] An appointed lawyer has the same
obligations to the client as retained counsel, including the obligations of
loyalty and confidentiality, and is subject to the same limitations on the
client-lawyer relationship, such as the obligation to refrain from assisting
the client in violation of the Rules.
SCR 20:6.3
Membership in legal services organization
A lawyer may serve as a director,
officer or member of a legal services organization, apart from the law firm in
which the lawyer practices, notwithstanding that the organization serves
persons having interests adverse to a client of the lawyer. The lawyer shall
not knowingly participate in a decision or action of the organization:
(a) if participating in the
decision would be incompatible with the lawyer's obligations to a client under
SCR 20:1.7; or
(b) where the decision could have
a material adverse effect on the representation of a client of the organization
whose interests are adverse to a client of the lawyer.
[1] Lawyers should be encouraged
to support and participate in legal service organizations. A lawyer who is an
officer or a member of such an organization does not thereby have a
client-lawyer relationship with persons served by the organization. However, there
is potential conflict between the interests of such persons and the interests
of the lawyer's clients. If the possibility of such conflict disqualified a
lawyer from serving on the board of a legal services organization, the
profession's involvement in such organizations would be severely curtailed.
[2] It may be necessary in
appropriate cases to reassure a client of the organization that the
representation will not be affected by conflicting loyalties of a member of the
board. Established, written policies in this respect can enhance the
credibility of such assurances.
SCR 20:6.4 Law
reform activities affecting client interests
A lawyer may serve as a director,
officer or member of an organization involved in reform of the law or its administration
notwithstanding that the reform may affect the interests of a client of the
lawyer. When the lawyer knows that the interests of a client may be materially
benefited by a decision in which the lawyer participates, the lawyer shall
disclose that fact but need not identify the client.
[1] Lawyers involved in
organizations seeking law reform generally do not have a client—lawyer
relationship with the organization. Otherwise, it might follow that a lawyer
could not be involved in a bar association law reform program that might
indirectly affect a client. See also Rule 1.2(b). For example, a lawyer
specializing in antitrust litigation might be regarded as disqualified from
participating in drafting revisions of rules governing that subject. In
determining the nature and scope of participation in such activities, a lawyer
should be mindful of obligations to clients under other Rules, particularly
Rule 1.7. A lawyer is professionally obligated to protect the integrity of the
program by making an appropriate disclosure within the organization when the
lawyer knows a private client might be materially benefited.
SCR 20:6.5
Nonprofit and court-annexed limited legal services programs
(a) A lawyer who, under the
auspices of a program sponsored by a nonprofit organization, a bar association,
an accredited law school, or a court, provides short-term limited legal services
to a client without expectation by either the lawyer or the client that the
lawyer will provide continuing representation in the matter:
(1) is subject to SCR 20:1.7 and
SCR 20:1.9(a) only if the lawyer knows that the representation of the client involves
a conflict of interest; and
(2) is subject to SCR 20:1.10
only if the lawyer knows that another lawyer associated with the lawyer in a
law firm is disqualified by SCR 20:1.7 or SCR 20:1.9(a) with respect to the
matter.
(b) Except as provided in par. (a)(2),
SCR 20:1.10 is inapplicable to a representation governed by this rule.
Unlike the Model Rule, paragraph
(a) expressly provides coverage for programs sponsored by bar associations and
accredited law schools.
[1] Legal services
organizations, courts and various nonprofit organizations have established
programs through which lawyers provide short-term limited legal services—such
as advice or the completion of legal forms—that will assist persons to address
their legal problems without further representation by a lawyer. In these
programs, such as legal-advice hotlines, advice-only clinics or pro se
counseling programs, a client-lawyer relationship is established, but there is
no expectation that the lawyer's representation of the client will continue
beyond the limited consultation. Such programs are normally operated under
circumstances in which it is not feasible for a lawyer to systematically screen
for conflicts of interest as is generally required before undertaking a
representation. See, e.g., Rules 1.7, 1.9 and 1.10.
[2] A lawyer who provides
short-term limited legal services pursuant to this Rule must secure the
client's informed consent to the limited scope of the representation. See Rule
1.2(c). If a short-term limited representation would not be reasonable under
the circumstances, the lawyer may offer advice to the client but must also
advise the client of the need for further assistance of counsel. Except as
provided in this Rule, the Rules of Professional Conduct, including Rules 1.6
and 1.9(c), are applicable to the limited representation.
[3] Because a lawyer who is
representing a client in the circumstances addressed by this Rule ordinarily is
not able to check systematically for conflicts of interest, paragraph (a)
requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the
representation presents a conflict of interest for the lawyer, and with Rule
1.10 only if the lawyer knows that another lawyer in the lawyer's firm is
disqualified by Rules 1.7 or 1.9(a) in the matter.
[4] Because the limited nature
of the services significantly reduces the risk of conflicts of interest with
other matters being handled by the lawyer's firm, paragraph (b) provides that
Rule 1.10 is inapplicable to a representation governed by this Rule except as
provided by paragraph (a)(2). Paragraph (a)(2) requires the participating
lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is
disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a
lawyer's participation in a short-term limited legal services program will not
preclude the lawyer's firm from undertaking or continuing the representation of
a client with interests adverse to a client being represented under the
program's auspices. Nor will the personal disqualification of a lawyer
participating in the program be imputed to other lawyers participating in the
program.
[5] If, after commencing a
short-term limited representation in accordance with this Rule, a lawyer
undertakes to represent the client in the matter on an ongoing basis, Rules
1.7, 1.9(a) and 1.10 become applicable.
INFORMATION ABOUT LEGAL
SERVICES
SCR 20:7.1 Communications concerning a lawyer's services
A lawyer shall not make a false or
misleading communication about the lawyer or the lawyer's services. A
communication is false or misleading if it:
(a) contains a material
misrepresentation of fact or law, or omits a fact necessary to make the
statement considered as a whole not materially misleading;
(b) is likely to create an
unjustified expectation about results the lawyer can achieve, or states or
implies that the lawyer can achieve results by means that violate the Rules of
Professional Conduct or other law; or
(c) compares the lawyer's
services with other lawyers' services, unless the comparison can be factually
substantiated; or
(d) contains any paid testimonial
about, or paid endorsement of, the lawyer without identifying the fact that
payment has been made or, if the testimonial or endorsement is not made by an
actual client, without identifying that fact.
Paragraphs (b) through (d) of
the Wisconsin Supreme Court Rule are not contained in the Model Rule.
[1] This Rule governs all
communications about a lawyer's services, including advertising permitted by
Rule 7.2. Whatever means are used to make known a lawyer's services, statements
about them must be truthful.
[2] Truthful statements that are
misleading are also prohibited by this Rule. A truthful statement is misleading
if it omits a fact necessary to make the lawyer's communication considered as a
whole not materially misleading. A truthful statement is also misleading if
there is a substantial likelihood that it will lead a reasonable person to
formulate a specific conclusion about the lawyer or the lawyer's services for
which there is no reasonable factual foundation.
[3] An advertisement that
truthfully reports a lawyer's achievements on behalf of clients or former
clients may be misleading if presented so as to lead a reasonable person to
form an unjustified expectation that the same results could be obtained for
other clients in similar matters without reference to the specific factual and
legal circumstances of each client's case. Similarly, an unsubstantiated
comparison of the lawyer's services or fees with the services or fees of other
lawyers may be misleading if presented with such specificity as would lead a
reasonable person to conclude that the comparison can be substantiated. The
inclusion of an appropriate disclaimer or qualifying language may preclude a
finding that a statement is likely to create unjustified expectations or
otherwise mislead a prospective client.
[4] See also Rule 8.4(e) for the
prohibition against stating or implying an ability to influence improperly a
government agency or official or to achieve results by means that violate the
Rules of Professional Conduct or other law.
(a) Subject to the requirements
of SCR 20:7.1 and SCR 20:7.3, a lawyer may advertise services through written,
recorded or electronic communication, including public media.
(b) A lawyer shall not give
anything of value to a person for recommending the lawyer's services, except
that a lawyer may:
(1) pay the reasonable cost of
advertisements or communications permitted by this rule;
(2) pay the usual charges of a
legal service plan or a not-for-profit or qualified lawyer referral
service. A qualified lawyer referral
service is a lawyer referral service that has been approved by an appropriate
regulatory authority;
(3) pay for a law practice in
accordance with SCR 20:1.17; and
(4) refer clients to another
lawyer or nonlawyer professional pursuant to an agreement not otherwise
prohibited under these rules that provides for the other person to refer
clients or customers to the lawyer, if
(i) the reciprocal
referral arrangement is not exclusive;
(ii) the client gives
informed consent;
(iii) there is no
interference with the lawyer's independence of professional judgment or with
the client-lawyer relationship; and
(iv) information
relating to representation of a client is protected as required by SCR 20:1.6.
(c) Any communication made
pursuant to this rule shall include the name and office address of at least one
lawyer or law firm responsible for its content.
Paragraph (b)(4) differs from
the Model Rule by requiring additional safeguards consistent with those found
in SCR 20:1.8(f). Lawyers should consider the "fee-splitting"
provisions contained in SCR 20:5.4 when considering their obligations under
this provision.
[1] To assist the public in
obtaining legal services, lawyers should be allowed to make known their
services not only through reputation but also through organized information
campaigns in the form of advertising. Advertising involves an active quest for
clients, contrary to the tradition that a lawyer should not seek clientele.
However, the public's need to know about legal services can be fulfilled in
part through advertising. This need is particularly acute in the case of
persons of moderate means who have not made extensive use of legal services.
The interest in expanding public information about legal services ought to
prevail over considerations of tradition. Nevertheless, advertising by lawyers
entails the risk of practices that are misleading or overreaching.
[2] This Rule permits public
dissemination of information concerning a lawyer's name or firm name, address
and telephone number; the kinds of services the lawyer will undertake; the
basis on which the lawyer's fees are determined, including prices for specific
services and payment and credit arrangements; a lawyer's foreign language
ability; names of references and, with their consent, names of clients
regularly represented; and other information that might invite the attention of
those seeking legal assistance.
[3] Questions of effectiveness
and taste in advertising are matters of speculation and subjective judgment.
Some jurisdictions have had extensive prohibitions against television
advertising, against advertising going beyond specified facts about a lawyer,
or against "undignified" advertising. Television is now one of the
most powerful media for getting information to the public, particularly persons
of low and moderate income; prohibiting television advertising, therefore,
would impede the flow of information about legal services to many sectors of
the public. Limiting the information that may be advertised has a similar
effect and assumes that the bar can accurately forecast the kind of information
that the public would regard as relevant. Similarly, electronic media, such as
the Internet, can be an important source of information about legal services,
and lawful communication by electronic mail is permitted by this Rule. But see
Rule 7.3(a) for the prohibition against the solicitation of a prospective
client through a real-time electronic exchange that is not initiated by the
prospective client.
[4] Neither this Rule nor Rule
7.3 prohibits communications authorized by law, such as notice to members of a
class in class action litigation.
Paying Others to Recommend a Lawyer
[5] Lawyers are not permitted to
pay others for channeling professional work. Paragraph (b)(1), however, allows
a lawyer to pay for advertising and communications permitted by this Rule,
including the costs of print directory listings, on-line directory listings,
newspaper ads, television and radio airtime, domain-name registrations,
sponsorship fees, banner ads, and group advertising. A lawyer may compensate
employees, agents and vendors who are engaged to provide marketing or
client-development services, such as publicists, public-relations personnel,
business-development staff and website designers. See Rule 5.3 for the duties
of lawyers and law firms with respect to the conduct of nonlawyers who prepare
marketing materials for them.
[6] A lawyer may pay the usual
charges of a legal service plan or a not-for-profit or qualified lawyer
referral service. A legal service plan is a prepaid or group legal service plan
or a similar delivery system that assists prospective clients to secure legal
representation. A lawyer referral service, on the other hand, is any
organization that holds itself out to the public as a lawyer referral service.
Such referral services are understood by laypersons to be consumer-oriented
organizations that provide unbiased referrals to lawyers with appropriate
experience in the subject matter of the representation and afford other client
protections, such as complaint procedures or malpractice insurance
requirements. Consequently, this Rule only permits a lawyer to pay the usual
charges of a not-for-profit or qualified lawyer referral service. A qualified lawyer
referral service is one that is approved by an appropriate regulatory authority
as affording adequate protections for prospective clients. See, e.g., the
American Bar Association's Model Supreme Court Rules Governing Lawyer Referral
Services and Model Lawyer Referral and Information Service Quality Assurance
Act (requiring that organizations that are identified as lawyer referral
services (i) permit the participation of all lawyers who are licensed and
eligible to practice in the jurisdiction and who meet reasonable objective
eligibility requirements as may be established by the referral service for the
protection of prospective clients; (ii) require each participating lawyer to
carry reasonably adequate malpractice insurance; (iii) act reasonably to assess
client satisfaction and address client complaints; and (iv) do not refer
prospective clients to lawyers who own, operate or are employed by the referral
service.)
[7] A lawyer who accepts
assignments or referrals from a legal service plan or referrals from a lawyer
referral service must act reasonably to assure that the activities of the plan
or service are compatible with the lawyer's professional obligations. See Rule
5.3. Legal service plans and lawyer referral services may communicate with
prospective clients, but such communication must be in conformity with these
Rules. Thus, advertising must not be false or misleading, as would be the case
if the communications of a group advertising program or a group legal services
plan would mislead prospective clients to think that it was a lawyer referral
service sponsored by a state agency or bar association. Nor could the lawyer
allow in-person, telephonic, or real-time contacts that would violate Rule 7.3.
[8] A lawyer also may agree to
refer clients to another lawyer or a nonlawyer professional, in return for the
undertaking of that person to refer clients or customers to the lawyer. Such
reciprocal referral arrangements must not interfere with the lawyer's
professional judgment as to making referrals or as to providing substantive
legal services. See Rules 2.1 and 5.4(c). Except as provided in Rule 1.5(e), a
lawyer who receives referrals from a lawyer or nonlawyer professional must not
pay anything solely for the referral, but the lawyer does not violate paragraph
(b) of this Rule by agreeing to refer clients to the other lawyer or nonlawyer
professional, so long as the reciprocal referral agreement is not exclusive and
the client is informed of the referral agreement. Conflicts of interest created
by such arrangements are governed by Rule 1.7. Reciprocal referral agreements
should not be of indefinite duration and should be reviewed periodically to
determine whether they comply with these Rules. This Rule does not restrict
referrals or divisions of revenues or net income among lawyers within firms
comprised of multiple entities.
SCR 20:7.3 Direct
contact with prospective clients
(a) A lawyer shall not by
in-person or live telephone or real-time electronic contact solicit
professional employment from a prospective client when a significant motive for
the lawyer's doing so is the lawyer's pecuniary gain, unless the person
contacted:
(1) is a lawyer; or
(2) has a family, close personal
or prior professional relationship with the lawyer.
(b) A lawyer shall not solicit
professional employment from a prospective client by written, recorded or
electronic communication or by in-person, telephone or real-time electronic
contact even when not otherwise prohibited by par. (a), if:
(1) the lawyer knows or
reasonably should know that the physical, emotional or mental state of the
person makes it unlikely that the person would exercise reasonable judgment in
employing a lawyer; or
(2) the prospective client has
made known to the lawyer a desire not to be solicited by the lawyer; or
(3) the solicitation involves
coercion, duress or harassment.
(c) Every written, recorded or
electronic communication from a lawyer soliciting professional employment from
a prospective client known to be in need of legal services in a particular
matter shall include the words "Advertising Material" on the outside
envelope, if any, and at the beginning and ending of any printed, recorded or
electronic communication, unless the recipient of the communication is a person
specified in pars. (a)(1) or (a)(2), and a copy of it shall be filed with the
office of lawyer regulation within five days of its dissemination.
(d) Notwithstanding the
prohibitions in par. (a), a lawyer may participate with a prepaid or group
legal service plan operated by an organization not owned or directed by the
lawyer that uses in-person or telephone contact to solicit memberships or
subscriptions for the plan from persons who are not known to need legal
services in a particular matter covered by the plan.
(e) Except as permitted under SCR
11.06, a lawyer, at his or her instance, shall not draft legal documents, such
as wills, trust instruments or contracts, which require or imply that the
lawyer's services be used in relation to that document.
The Wisconsin Supreme Court Rule
differs from the Model Rule in that paragraph (b)(1) has been added, as have
the last clause of paragraph (c) and all of paragraph (e). These provisions are
carried forward from the prior Wisconsin Supreme Court Rule.
When a lawyer uses standard form
solicitations that are mailed to many prospective clients, the lawyer satisfies
the filing obligation in subparagraph (c) by filing one copy of each version of
the solicitation form with the office of lawyer regulation, and by maintaining
in the lawyer's files the names and addresses to which the solicitation was
mailed.
Because of differences in
content and numbers between the Wisconsin Supreme Court Rule and the Model
Rule, care should be used in consulting the ABA Comment.
[1] There is a potential for
abuse inherent in direct in-person, live telephone or real-time electronic
contact by a lawyer with a prospective client known to need legal services.
These forms of contact between a lawyer and a prospective client subject the
layperson to the private importuning of the trained advocate in a direct
interpersonal encounter. The prospective client, who may already feel
overwhelmed by the circumstances giving rise to the need for legal services,
may find it difficult fully to evaluate all available alternatives with
reasoned judgment and appropriate self-interest in the face of the lawyer's
presence and insistence upon being retained immediately. The situation is
fraught with the possibility of undue influence, intimidation, and
over-reaching.
[2] This potential for abuse
inherent in direct in-person, live telephone or real-time electronic
solicitation of prospective clients justifies its prohibition, particularly
since lawyer advertising and written and recorded communication permitted under
Rule 7.2 offer alternative means of conveying necessary information to those
who may be in need of legal services. Advertising and written and recorded
communications which may be mailed or autodialed make it possible for a
prospective client to be informed about the need for legal services, and about
the qualifications of available lawyers and law firms, without subjecting the
prospective client to direct in-person, telephone or real-time electronic
persuasion that may overwhelm the client's judgment.
[3] The use of general
advertising and written, recorded or electronic communications to transmit
information from lawyer to prospective client, rather than direct in-person,
live telephone or real-time electronic contact, will help to assure that the
information flows cleanly as well as freely. The contents of advertisements and
communications permitted under Rule 7.2 can be permanently recorded so that
they cannot be disputed and may be shared with others who know the lawyer. This
potential for informal review is itself likely to help guard against statements
and claims that might constitute false and misleading communications, in
violation of Rule 7.1. The contents of direct in-person, live telephone or
real-time electronic conversations between a lawyer and a prospective client
can be disputed and may not be subject to third-party scrutiny. Consequently,
they are much more likely to approach (and occasionally cross) the dividing
line between accurate representations and those that are false and misleading.
[4] There is far less likelihood
that a lawyer would engage in abusive practices against an individual who is a
former client, or with whom the lawyer has close personal or family
relationship, or in situations in which the lawyer is motivated by
considerations other than the lawyer's pecuniary gain. Nor is there a serious
potential for abuse when the person contacted is a lawyer. Consequently, the
general prohibition in Rule 7.3(a) and the requirements of Rule 7.3(c) are not
applicable in those situations. Also, paragraph (a) is not intended to prohibit
a lawyer from participating in constitutionally protected activities of public
or charitable legal-service organizations or bona fide political, social,
civic, fraternal, employee or trade organizations whose purposes include
providing or recommending legal services to its members or beneficiaries.
[5] But even permitted forms of
solicitation can be abused. Thus, any solicitation which contains information
which is false or misleading within the meaning of Rule 7.1, which involves
coercion, duress or harassment within the meaning of Rule 7.3(b)(2), or which
involves contact with a prospective client who has made known to the lawyer a
desire not to be solicited by the lawyer within the meaning of Rule 7.3(b)(1)
is prohibited. Moreover, if after sending a letter or other communication to a
client as permitted by Rule 7.2 the lawyer receives no response, any further
effort to communicate with the prospective client may violate the provisions of
Rule 7.3(b).
[6] This Rule is not intended to
prohibit a lawyer from contacting representatives of organizations or groups
that may be interested in establishing a group or prepaid legal plan for their
members, insureds, beneficiaries or other third parties for the purpose of
informing such entities of the availability of and details concerning the plan
or arrangement which the lawyer or lawyer's firm is willing to offer. This form
of communication is not directed to a prospective client. Rather, it is usually
addressed to an individual acting in a fiduciary capacity seeking a supplier of
legal services for others who may, if they choose, become prospective clients
of the lawyer. Under these circumstances, the activity which the lawyer
undertakes in communicating with such representatives and the type of
information transmitted to the individual are functionally similar to and serve
the same purpose as advertising permitted under Rule 7.2.
[7] The requirement in Rule
7.3(c) that certain communications be marked "Advertising Material"
does not apply to communications sent in response to requests of potential
clients or their spokespersons or sponsors. General announcements by lawyers,
including changes in personnel or office location, do not constitute
communications soliciting professional employment from a client known to be in
need of legal services within the meaning of this Rule.
[8] Paragraph (d) of this Rule
permits a lawyer to participate with an organization which uses personal
contact to solicit members for its group or prepaid legal service plan,
provided that the personal contact is not undertaken by any lawyer who would be
a provider of legal services through the plan. The organization must not be
owned by or directed (whether as manager or otherwise) by any lawyer or law
firm that participates in the plan. For example, paragraph (d) would not permit
a lawyer to create an organization controlled directly or indirectly by the
lawyer and use the organization for the in-person or telephone solicitation of
legal employment of the lawyer through memberships in the plan or otherwise.
The communication permitted by these organizations also must not be directed to
a person known to need legal services in a particular matter, but is to be
designed to inform potential plan members generally of another means of
affordable legal services. Lawyers who participate in a legal service plan must
reasonably assure that the plan sponsors are in compliance with Rules 7.1, 7.2
and 7.3(b). See Rule 8.4(a).
SCR 20:7.4 Communication of fields of practice
(a) A lawyer may communicate the
fact that the lawyer does or does not practice in particular fields of law.
(b) A lawyer admitted to engage
in patent practice before the United States Patent and Trademark Office may use
the designation "patent attorney" or a substantially similar
designation.
(c) A lawyer engaged in admiralty
practice may use the designation "admiralty," "proctor in
admiralty" or a substantially similar designation.
(d) A lawyer shall not state or
imply that a lawyer is certified as a specialist in a particular field of law,
unless:
(1) the lawyer has been certified
as a specialist by an organization that has been approved by an appropriate
state authority or that has been accredited by the American Bar Association;
and
(2) the name of the certifying
organization is clearly identified in the communication.
[1] Paragraph (a) of this Rule
permits a lawyer to indicate areas of practice in communications about the
lawyer's services. If a lawyer practices only in certain fields, or will not
accept matters except in a specified field or fields, the lawyer is permitted
to so indicate. A lawyer is generally permitted to state that the lawyer is a
"specialist," practices a "specialty," or "specializes
in" particular fields, but such communications are subject to the
"false and misleading" standard applied in Rule 7.1 to communications
concerning a lawyer's services.
[2] Paragraph (b) recognizes the
long-established policy of the Patent and Trademark Office for the designation
of lawyers practicing before the Office. Paragraph (c) recognizes that
designation of Admiralty practice has a long historical tradition associated
with maritime commerce and the federal courts.
[3] Paragraph (d) permits a
lawyer to state that the lawyer is certified as a specialist in a field of law
if such certification is granted by an organization approved by an appropriate
state authority or accredited by the American Bar Association or another
organization, such as a state bar association, that has been approved by the
state authority to accredit organizations that certify lawyers as specialists.
Certification signifies that an objective entity has recognized an advanced
degree of knowledge and experience in the specialty area greater than is
suggested by general licensure to practice law. Certifying organizations may be
expected to apply standards of experience, knowledge and proficiency to insure
that a lawyer's recognition as a specialist is meaningful and reliable. In
order to insure that consumers can obtain access to useful information about an
organization granting certification, the name of the certifying organization must
be included in any communication regarding the certification.
SCR 20:7.5 Firm
names and letterheads
(a) A lawyer shall not use a firm
name, letterhead or other professional designation that violates SCR 20:7.1. A
trade name may be used by a lawyer in private practice if it does not imply a
connection with a government agency or with a public or charitable legal
services organization and is not otherwise in violation of SCR 20:7.1.
(b) A law firm with offices in
more than one jurisdiction may use the same name or other professional
designation in each jurisdiction, but identification of the lawyers in an
office of the firm shall indicate the jurisdictional limitations on those not
licensed to practice in the jurisdiction where the office is located.
(c) The name of a lawyer holding
a public office shall not be used in the name of a law firm, or in
communications on its behalf, during any substantial period in which the lawyer
is not actively and regularly practicing with the firm.
(d) Lawyers may state or imply
that they practice in a partnership or other organization only when that is the
fact.
[1] A firm may be designated by
the names of all or some of its members, by the names of deceased members where
there has been a continuing succession in the firm's identity or by a trade
name such as the "ABC Legal Clinic." A lawyer or law firm may also be
designated by a distinctive website address or comparable professional
designation. Although the United States Supreme Court has held that legislation
may prohibit the use of trade names in professional practice, use of such names
in law practice is acceptable so long as it is not misleading. If a private
firm uses a trade name that includes a geographical name such as
"Springfield Legal Clinic," an express disclaimer that it is a public
legal aid agency may be required to avoid a misleading implication. It may be
observed that any firm name including the name of a deceased partner is,
strictly speaking, a trade name. The use of such names to designate law firms
has proven a useful means of identification. However, it is misleading to use
the name of a lawyer not associated with the firm or a predecessor of the firm,
or the name of a nonlawyer.
[2] With regard to paragraph
(d), lawyers sharing office facilities, but who are not in fact associated with
each other in a law firm, may not denominate themselves as, for example,
"Smith and Jones," for that title suggests that they are practicing
law together in a firm.
SCR 20:7.6
Political contributions to obtain government legal engagements or
appointments by judges
A lawyer or law firm shall not accept
a government legal engagement or an appointment by a judge if the lawyer or law
firm makes a political contribution or solicits political contributions for the
purpose of obtaining or being considered for that type of legal engagement or
appointment.
[1] Lawyers have a right to
participate fully in the political process, which includes making and
soliciting political contributions to candidates for judicial and other public
office. Nevertheless, when lawyers make or solicit political contributions in
order to obtain an engagement for legal work awarded by a government agency, or
to obtain appointment by a judge, the public may legitimately question whether
the lawyers engaged to perform the work are selected on the basis of competence
and merit. In such a circumstance, the integrity of the profession is
undermined.
[2] The term "political
contribution" denotes any gift, subscription, loan, advance or deposit of
anything of value made directly or indirectly to a candidate, incumbent,
political party or campaign committee to influence or provide financial support
for election to or retention in judicial or other government office. Political
contributions in initiative and referendum elections are not included. For
purposes of this Rule, the term "political contribution" does not
include uncompensated services.
[3] Subject to the exceptions
below, (i) the term "government legal engagement" denotes any
engagement to provide legal services that a public official has the direct or
indirect power to award; and (ii) the term "appointment by a judge"
denotes an appointment to a position such as referee, commissioner, special
master, receiver, guardian or other similar position that is made by a judge.
Those terms do not, however, include (a) substantially uncompensated services;
(b) engagements or appointments made on the basis of experience, expertise,
professional qualifications and cost following a request for proposal or other
process that is free from influence based upon political contributions; and (c)
engagements or appointments made on a rotational basis from a list compiled without
regard to political contributions.
[4] The term "lawyer or law
firm" includes a political action committee or other entity owned or
controlled by a lawyer or law firm.
[5] Political contributions are
for the purpose of obtaining or being considered for a government legal
engagement or appointment by a judge if, but for the desire to be considered
for the legal engagement or appointment, the lawyer or law firm would not have
made or solicited the contributions. The purpose may be determined by an
examination of the circumstances in which the contributions occur. For example,
one or more contributions that in the aggregate are substantial in relation to
other contributions by lawyers or law firms, made for the benefit of an
official in a position to influence award of a government legal engagement, and
followed by an award of the legal engagement to the contributing or soliciting
lawyer or the lawyer's firm would support an inference that the purpose of the
contributions was to obtain the engagement, absent other factors that weigh
against existence of the proscribed purpose. Those factors may include among
others that the contribution or solicitation was made to further a political,
social, or economic interest or because of an existing personal, family, or
professional relationship with a candidate.
[6] If a lawyer makes or
solicits a political contribution under circumstances that constitute bribery
or another crime, Rule 8.4(b) is implicated.
MAINTAINING
THE INTEGRITY OF THE PROFESSION
SCR 20:8.1 Bar
admission and disciplinary matters
An applicant for admission to the bar,
or a lawyer in connection with a bar admission application or in connection
with a disciplinary matter, shall not:
(a) knowingly make a false statement
of material fact; or
(b) fail to disclose a fact
necessary to correct a misapprehension known by the person to have arisen in
the matter, or knowingly fail to respond to a lawful demand for information
from an admissions or disciplinary authority, except that this rule does not
require disclosure of information otherwise protected by SCR 20:1.6.
[1] The duty imposed by this
Rule extends to persons seeking admission to the bar as well as to lawyers.
Hence, if a person makes a material false statement in connection with an
application for admission, it may be the basis for subsequent disciplinary
action if the person is admitted, and in any event may be relevant in a
subsequent admission application. The duty imposed by this Rule applies to a
lawyer's own admission or discipline as well as that of others. Thus, it is a
separate professional offense for a lawyer to knowingly make a
misrepresentation or omission in connection with a disciplinary investigation
of the lawyer's own conduct. Paragraph (b) of this Rule also requires
correction of any prior misstatement in the matter that the applicant or lawyer
may have made and affirmative clarification of any misunderstanding on the part
of the admissions or disciplinary authority of which the person involved
becomes aware.
[2] This Rule is subject to the
provisions of the fifth amendment of the United States Constitution and
corresponding provisions of state constitutions. A person relying on such a
provision in response to a question, however, should do so openly and not use
the right of nondisclosure as a justification for failure to comply with this
Rule.
[3] A lawyer representing an
applicant for admission to the bar, or representing a lawyer who is the subject
of a disciplinary inquiry or proceeding, is governed by the rules applicable to
the client-lawyer relationship, including Rule 1.6 and, in some cases, Rule
3.3.
SCR 20:8.2
Judicial and legal officials
(a) A lawyer shall not make a
statement that the lawyer knows to be false or with reckless disregard as to
its truth or falsity concerning the qualifications or integrity of a judge,
adjudicatory officer or public legal officer, or of a candidate for election or
appointment to judicial or legal office.
(b) A lawyer who is a candidate
for judicial office shall comply with the applicable provisions of the code of
judicial conduct.
[1] Assessments by lawyers are
relied on in evaluating the professional or personal fitness of persons being
considered for election or appointment to judicial office and to public legal
offices, such as attorney general, prosecuting attorney and public defender.
Expressing honest and candid opinions on such matters contributes to improving
the administration of justice. Conversely, false statements by a lawyer can
unfairly undermine public confidence in the administration of justice.
[2] When a lawyer seeks judicial
office, the lawyer should be bound by applicable limitations on political
activity.
[3] To maintain the fair and
independent administration of justice, lawyers are encouraged to continue
traditional efforts to defend judges and courts unjustly criticized.
SCR 20:8.3
Reporting professional misconduct
(a) A lawyer who knows that
another lawyer has committed a violation of the Rules of Professional Conduct
that raises a substantial question as to that lawyer's honesty, trustworthiness
or fitness as a lawyer in other respects, shall inform the appropriate
professional authority.
(b) A lawyer who knows that a
judge has committed a violation of applicable rules of judicial conduct that
raises a substantial question as to the judge's fitness for office shall inform
the appropriate authority.
(c) If the information revealing
misconduct under subs. (a) or (b) is confidential under SCR 20:1.6, the lawyer
shall consult with the client about the matter and abide by the client's wishes
to the extent required by SCR 20:1.6.
(d) This rule does not require
disclosure of any of the following:
(1) Information gained by a
lawyer while participating in a confidential lawyers' assistance program.
(2) Information acquired by any
person selected to mediate or arbitrate disputes between lawyers arising out of
a professional or economic dispute involving law firm dissolutions, termination
or departure of one or more lawyers from a law firm where such information is
acquired in the course of mediating or arbitrating the dispute between lawyers.
The change from "having
knowledge" to "who knows" in SCR 20:8.3(a) and (b) reflects the
adoption of the language used in the ABA Model Rule. See also SCR 20:1.0(g)
defining "knows." The
requirement under paragraph (c) that the lawyer consult with the client is not
expressly included in the Model Rule.
It deletes reference to
judges. The reference to confidential
lawyers' assistance programs includes programs such as the state bar sponsored
Wisconsin Lawyers' Assistance Program (WISLAP), the Law Office Management
Assistance Program (LOMAP), or the Ethics Hotline.
[1] Self-regulation of the legal
profession requires that members of the profession initiate disciplinary
investigation when they know of a violation of the Rules of Professional
Conduct. Lawyers have a similar obligation with respect to judicial misconduct.
An apparently isolated violation may indicate a pattern of misconduct that only
a disciplinary investigation can uncover. Reporting a violation is especially
important where the victim is unlikely to discover the offense.
[2] A report about misconduct is
not required where it would involve violation of Rule 1.6. However, a lawyer
should encourage a client to consent to disclosure where prosecution would not
substantially prejudice the client's interests.
[3] If a lawyer were obliged to
report every violation of the Rules, the failure to report any violation would
itself be a professional offense. Such a requirement existed in many
jurisdictions but proved to be unenforceable. This Rule limits the reporting
obligation to those offenses that a self-regulating profession must vigorously
endeavor to prevent. A measure of judgment is, therefore, required in complying
with the provisions of this Rule. The term "substantial" refers to
the seriousness of the possible offense and not the quantum of evidence of
which the lawyer is aware. A report should be made to the bar disciplinary
agency unless some other agency, such as a peer review agency, is more
appropriate in the circumstances. Similar considerations apply to the reporting
of judicial misconduct.
[4] The duty to report
professional misconduct does not apply to a lawyer retained to represent a lawyer
whose professional conduct is in question. Such a situation is governed by the
Rules applicable to the client-lawyer relationship.
[5] Information about a lawyer's
or judge's misconduct or fitness may be received by a lawyer in the course of
that lawyer's participation in an approved lawyers or judges assistance
program. In that circumstance, providing for an exception to the reporting
requirements of paragraphs (a) and (b) of this Rule encourages lawyers and
judges to seek treatment through such a program. Conversely, without such an
exception, lawyers and judges may hesitate to seek assistance from these
programs, which may then result in additional harm to their professional
careers and additional injury to the welfare of clients and the public. These
Rules do not otherwise address the confidentiality of information received by a
lawyer or judge participating in an approved lawyers' assistance program; such
an obligation, however, may be imposed by the rules of the program or other
law.
It is professional misconduct for a
lawyer to:
(a) violate or attempt to violate
the Rules of Professional Conduct, knowingly assist or induce another to do so,
or do so through the acts of another;
(b) commit a criminal act that
reflects adversely on the lawyer's honesty, trustworthiness or fitness as a
lawyer in other respects;
(c) engage in conduct involving
dishonesty, fraud, deceit or misrepresentation;
(d) state or imply an ability to
influence improperly a government agency or official or to achieve results by
means that violate the Rules of Professional Conduct or other law;
(e) knowingly assist a judge or
judicial officer in conduct that is a violation of applicable rules of judicial
conduct or other law; or
(f) violate a statute, supreme
court rule, supreme court order or supreme court decision regulating the
conduct of lawyers;
(g) violate the attorney's oath;
(h) fail to cooperate in the
investigation of a grievance filed with the office of lawyer regulation as
required by SCR 21.15(4), SCR 22.001(9)(b), SCR 22.03(2), SCR 22.03(6), or SCR
22.04(1); or
(i) harass a person on the basis
of sex, race, age, creed, religion, color, national origin, disability, sexual
preference or marital status in connection with the lawyer's professional
activities. Legitimate advocacy
respecting the foregoing factors does not violate par. (i).
Intentional violation of tax
laws, including failure to file tax returns or failure to pay taxes may violate
SCR 20:8.4(f), absent a showing of inability to pay. In re Disciplinary Proceedings Against
Cassidy, 172
Failure to cooperate, paragraph
(h), was previously enforced as a violation of paragraph (f). Paragraph (h) was added to the rule to
provide better notice to lawyers of the obligation to cooperate. Other statutes, rules, orders, and decisions
continue to be included within the definition of misconduct and are enforceable
under paragraph (f).
Paragraphs (f) through (i) do
not have counterparts in the Model Rule. What constitutes harassment under
paragraph (i) may be determined with reference to anti-discrimination
legislation and interpretive case law. Because of differences in content and
numbering, care should be used when consulting the ABA Comment.
[1] Lawyers are subject to
discipline when they violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so or do so through the acts
of another, as when they request or instruct an agent to do so on the lawyer's
behalf. Paragraph (a), however, does not prohibit a lawyer from advising a
client concerning action the client is legally entitled to take.
[2] Many kinds of illegal
conduct reflect adversely on fitness to practice law, such as offenses
involving fraud and the offense of willful failure to file an income tax
return. However, some kinds of offenses carry no such implication.
Traditionally, the distinction was drawn in terms of offenses involving
"moral turpitude." That concept can be construed to include offenses
concerning some matters of personal morality, such as adultery and comparable offenses,
that have no specific connection to fitness for the practice of law. Although a
lawyer is personally answerable to the entire criminal law, a lawyer should be
professionally answerable only for offenses that indicate lack of those
characteristics relevant to law practice. Offenses involving violence,
dishonesty, breach of trust, or serious interference with the administration of
justice are in that category. A pattern of repeated offenses, even ones of
minor significance when considered separately, can indicate indifference to
legal obligation.
[3] A lawyer who, in the course
of representing a client, knowingly manifests by words or conduct, bias or
prejudice based upon race, sex, religion, national origin, disability, age,
sexual orientation or socioeconomic status, violates paragraph (d) when such
actions are prejudicial to the administration of justice. Legitimate advocacy
respecting the foregoing factors does not violate paragraph (d). A trial
judge's finding that peremptory challenges were exercised on a discriminatory
basis does not alone establish a violation of this Rule.
[4] A lawyer may refuse to
comply with an obligation imposed by law upon a good faith belief that no valid
obligation exists. The provisions of Rule 1.2(d) concerning a good faith challenge
to the validity, scope, meaning or application of the law apply to challenges
of legal regulation of the practice of law.
[5] Lawyers holding public
office assume legal responsibilities going beyond those of other citizens. A
lawyer's abuse of public office can suggest an inability to fulfill the
professional role of lawyers. The same is true of abuse of positions of private
trust such as trustee, executor, administrator, guardian, agent and officer,
director or manager of a corporation or other organization.
SCR 20:8.5
Disciplinary authority; choice of law
(a) Disciplinary authority. A
lawyer admitted to the bar of this state is subject to the disciplinary
authority of this state regardless of where the lawyer's conduct occurs. A lawyer not admitted to the bar of this
state is also subject to the disciplinary authority of this state if the lawyer
provides or offers to provide any legal services in this state. A lawyer may be subject to the disciplinary
authority of both this state and another jurisdiction for the same conduct.
(b) Choice of law. In the exercise of
the disciplinary authority of this state, the Rules of Professional Conduct to
be applied shall be as follows:
(1) for conduct in connection with a
matter pending before a tribunal, the rules of the jurisdiction in which the
tribunal sits, unless the rules of the tribunal provide otherwise; and
(2) for any other conduct,
(i) if the lawyer is admitted
to the bar of only this state, the rules to be applied shall be the rules of
this state.
(ii) if the lawyer is
admitted to the bars of this state and another jurisdiction, the rules to be
applied shall be the rules of the admitting jurisdiction in which the lawyer
principally practices, except that if particular conduct clearly has its
predominant effect in another jurisdiction in which the lawyer is admitted to
the bar, the rules of that jurisdiction shall be applied to that conduct.
(iii) if the lawyer is
admitted to the bar in another jurisdiction and is providing legal services in
this state as allowed under these rules, the rules to be applied shall be the
rules of this state.
(c) A lawyer shall not be subject to
discipline if the lawyer's conduct conforms to the rules of a jurisdiction in
which the lawyer reasonably believes the predominant effect of the lawyer's
conduct will occur.
SCR 20:8.5 differs from the ABA
Model Rule 8.5. Due to substantive and
numbering differences, special care should be taken in consulting the ABA
Comment.
Disciplinary
Authority
[1] It is longstanding law that
the conduct of a lawyer admitted to practice in this jurisdiction is subject to
the disciplinary authority of this jurisdiction. Extension of the disciplinary
authority of this jurisdiction to other lawyers who provide or offer to provide
legal services in this jurisdiction is for the protection of the citizens of
this jurisdiction. Reciprocal enforcement of a jurisdiction's disciplinary
findings and sanctions will further advance the purposes of this Rule. See,
Rules 6 and 22,
Choice of Law
[2] A lawyer may be potentially
subject to more than one set of rules of professional conduct which impose
different obligations. The lawyer may be licensed to practice in more than one
jurisdiction with differing rules, or may be admitted to practice before a
particular court with rules that differ from those of the jurisdiction or
jurisdictions in which the lawyer is licensed to practice. Additionally, the
lawyer's conduct may involve significant contacts with more than one
jurisdiction.
[3] Paragraph (b) seeks to
resolve such potential conflicts. Its premise is that minimizing conflicts
between rules, as well as uncertainty about which rules are applicable, is in
the best interest of both clients and the profession (as well as the bodies
having authority to regulate the profession). Accordingly, it takes the
approach of (i) providing that any particular conduct of a lawyer shall be
subject to only one set of rules of professional conduct, (ii) making the
determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions, and (iii) providing protection
from discipline for lawyers who act reasonably in the face of uncertainty.
[4] Paragraph (b)(1) provides
that as to a lawyer's conduct relating to a proceeding pending before a
tribunal, the lawyer shall be subject only to the rules of the jurisdiction in
which the tribunal sits unless the rules of the tribunal, including its choice
of law rule, provide otherwise. As to all other conduct, including conduct in
anticipation of a proceeding not yet pending before a tribunal, paragraph
(b)(2) provides that a lawyer shall be subject to the rules of the jurisdiction
in which the lawyer's conduct occurred, or, if the predominant effect of the
conduct is in another jurisdiction, the rules of that jurisdiction shall be
applied to the conduct. In the case of conduct in anticipation of a proceeding
that is likely to be before a tribunal, the predominant effect of such conduct
could be where the conduct occurred, where the tribunal sits or in another
jurisdiction.
[5] When a lawyer's conduct
involves significant contacts with more than one jurisdiction, it may not be
clear whether the predominant effect of the lawyer's conduct will occur in a
jurisdiction other than the one in which the conduct occurred. So long as the
lawyer's conduct conforms to the rules of a jurisdiction in which the lawyer
reasonably believes the predominant effect will occur, the lawyer shall not be
subject to discipline under this Rule.
[6] If two admitting
jurisdictions were to proceed against a lawyer for the same conduct, they
should, applying this rule, identify the same governing ethics rules. They
should take all appropriate steps to see that they do apply the same rule to
the same conduct, and in all events should avoid proceeding against a lawyer on
the basis of two inconsistent rules.
[7] The choice of law provision
applies to lawyers engaged in transnational practice, unless international law,
treaties or other agreements between competent regulatory authorities in the
affected jurisdictions provide otherwise.
Adopted
by the supreme court on June 10, 1987, effective January 1, 1988; amended
January 1, 1989; November 6, 1990; May 29, 1991; October 25, 1991; November 21,
1991; April 19, 1995; November 15, 1995; June 26, 1996; October 28, 1996; March
18, 1997; June 4, 1998; October 30, 1998.; November 9, 1999; November 14, 2001;
April 30, 2004; July 1, 2007; January 1, 2009; July 1, 2009; January 1, 2010.